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TMI Blog2021 (8) TMI 828X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - C.EX. APP 3 OF 2020 - - - Dated:- 11-8-2021 - HON BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA AND HON BLE MR. JUSTICE MANASH RANJAN PATHAK For the Writ Appellant : Mr. S.C. Keyal, Advocate. For Respondent : Dr. A. Saraf, Senior Advocate. JUDGMENT ORDER (ORAL) (Sudhanshu Dhulia, CJ) The matter is taken up through video conferencing. 2. Heard Mr. S.C. Keyal, learned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case. Aggrieved by the order of the Tribunal, the Revenue has filed the present appeal under Section 35G of the Act. Sub-section (1) of Section 35G as applicable as of now reads as under:- 35G. Appeal to High Court. (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. 5. A preliminary objection has thus been raised by Dr. A. Saraf, learned senior counsel a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nufacture of printed corrugated cartons, printed duplex cartons and mosquito repellant coils. These items fall under Tariff Items 4819.12; 4819.19 and 3808.10 of the First Schedule to the Central Excise Tariff Act, 1985. However, the company is also availing the Cen-vat credit facility under Rule 3 of the Cenvat Credit Rules, 2004 on duty paid inputs as well as on capital goods. They are also availing benefits of Notification No. 56/2002-C.E., dated November 14, 2002, as amended. In respect of their Unit-I, the respondent-company had filed a refund claim by way of self credit for ₹ 32,00,562/- on account of Central Excise duty and for ₹ 63,936/- on account of Education Cess paid through Permanent Ledger Account for the month of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at all leviable in view of entitlement to exemption worked out under paragraph 2 of the Notification. 6. From a perusal of the provisions of the aforementioned Acts as well as the claims made by the respondents, it is clear that the orders impugned related to the rate of duty of excise. The Apex Court in Navin Chemicals Mfg Trading Co. Ltd. v. Collector of Customs (supra) had the occasion to consider the scope of Sections 129C(4), 129D(5), 130(1) and 130E(b) of the Customs Act, 1962 and Sections 35D(3), 35E(5), 35G(1) and 35L(b) of the Central Excises and Salt Act, 1944. The Apex Court examined the scope of words determination of any question having a relation to the rate of duty of customs to the value of goods for purposes of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y are covered by an exemption notification relates directly and proximately to the rate of duty applicable thereto for purposes of assessment. Whether the value of goods for purposes of assessment is required to be increased or decreased is a question that relates directly and proximately to the value of goods for purposes of assessment. The statutory definition of the said expression indicates that it has to be read to limit its application to cases where, for the purposes of assessment, questions arise directly and proximately as to the rate of duty or the value of the goods. 7. The aforesaid judgment is followed by Bombay High Court in Commissioner of Customs and C. Ex., Goa v. Primella Sanitary Products (P) Ltd., 2002 (145) E.L.T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 35G of the Act but under Section 35L. Whether Education Cess levied and collected under Section 91 of the Finance Act, 2004 can be considered as a duty of excise for the grant of refund in the cases or by way of self credit un der notification dated November 14, 2001, is definitely related to rate of duty of excise for the purpose of assessment. We have, therefore, no hesitation to say that the point raised is directly related to the rate of duty of excise and that being so, the only remedy open to the Commissioner is to move the Supreme Court and this Court cannot entertain these applications under Section 35G of the Act, since appeal shall lie to the. High Court only against those orders not being orders related to the determinatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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