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2021 (8) TMI 828 - HC - Central ExciseAppropriate Forum - appeal to be filed before High Court or Supreme Court - Levy of Excise Duty - Superior Kerosene Oil - whether the duty was liable to be paid only as SKO and not payable as on MS or HSD? - HELD THAT - Sub-Section (1) of Section 35G states that an appeal will not lie before the High Court but before the Supreme Court if among other things the matter relates to rate of duty of excise. Therefore, even if one of the many issues relate to the rate of duty, the appeal would still lie before the Hon ble Apex Court and not before the High Court. The dispute here in any case falls in a very limited area as to the determination of the rate of duty to be paid by the assessee. That being so, this matter lies within the exclusive jurisdiction of the Hon ble Apex Court under Section 35L of the Act and it is an appeal which cannot be heard by this Court under Section 35G of the Act. Appeal dismissed as not maintainable.
Issues:
- Appeal filed by Revenue under Section 35G of the Central Excise Act, 1944. - Dispute regarding the duty payment on SKO mixed with MS or HSD. - Interpretation of Section 35G and exclusivity of jurisdiction under Section 35L. Analysis: 1. Appeal under Section 35G: - The appeal was filed by the Revenue under Section 35G of the Central Excise Act, 1944. The dispute revolved around the duty payment on SKO (Superior Kerosene Oil) mixed with Motor Spirit (MS) or High Speed Diesel (HSD). The Revenue contended that duty should be paid based on the rates applicable to MS and HSD, which are higher than SKO. 2. Interpretation of Section 35G: - The Tribunal ruled in favor of the assessee, stating that duty was only payable on SKO and not on MS or HSD rates as per a Circular. The Revenue challenged this decision, leading to the current appeal. However, a preliminary objection was raised regarding the jurisdiction of the High Court under Section 35G. 3. Exclusive Jurisdiction under Section 35L: - The senior counsel for the assessee argued that if the dispute relates to the rate of duty for assessment, the appeal should be directed to the Supreme Court under Section 35L of the Act. Citing precedents, it was highlighted that matters concerning the rate of duty fall within the exclusive jurisdiction of the Supreme Court, not the High Court. 4. Judicial Precedents: - Reference was made to judgments such as Sterlite Optical Technologies Limited -Vs- Commissioner of C.Ex, Aurangabad and Commissioner of Customs & Central Excise, Jammu -Vs- Bharat Box Factory Limited, emphasizing the applicability of Section 35L in cases related to the determination of duty rates for assessment purposes. 5. Decision and Clarification: - The High Court upheld the preliminary objection, dismissing the appeal as not maintainable under Section 35G. It was clarified that the dismissal of the appeal would not prejudice the Revenue's right to file an appeal before the appropriate forum, i.e., the Supreme Court under Section 35L. In conclusion, the judgment delves into the intricacies of duty payment disputes, jurisdictional provisions under Sections 35G and 35L, and the application of legal principles from previous cases to determine the appropriate appellate forum for matters concerning the rate of excise duty assessment.
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