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TMI Blog2023 (1) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... one of it is Motor Spirit falling under Chapter Heading No.27.10. It is the case of the department that the Government had exempted vide notification no 62/2002-CE, No. 63/2002-CE dated 31.12.2002, duty on Ethanol Blended Motor Spirit (EBMS) if the same duty is paid up to 30.06.2004. For the period from 01.07.2004 to 07.08.2004, no notification was issued granting exemption on EBMS which was on exciseable product from payment of Central Excise Duty and the respondent cleared EBMS on payment of central excise duty, without paying duty on the Motor Spirit from 01.07.2004 to 07.08.2004. Once exemption was withdrawn, the Motor Spirit used in Ethonal blended petrol is said to have become chargeable to duty, which the respondent of course has not paid. As per the department in view of CBEC circular no 366/5/2002-TRU dated 02.01.2003, blending of MS and Ethanol is a manufacturing process and new product emerges out of it and therefore exemption benefit is not admissible to respondent. The department therefore, issued show Cause Notice dated 09.06.2005, to respondent proposing to withdraw benefit of exemption Notification No.67/95-CE dated 16.03.1995, for motor spirit used captively for m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ploaded on the CBEC website in November 2007 was not sustainable as the same was never issued. It is further held by the Tribunal that as the draft circular uploaded on CBEC website in November,2007 was never issued, the earlier circular dated 13.12.1994 issued by the board had continuing effect and as per the said circular, blending of Ethanol with Motor Spirit does not amount to 'manufacture'. 2.6 Upon remand, the Adjudicating authority once again, in the order dated 19.11.2020 upheld the allegations made in the Show Cause Notice by confirming the duty along with interest and penalty. In the order dated 19.11.2020, it was held that circular dated 13.12.1994 issued by the board specifically pertains to mixing of duty paid Methanol to the extent of 3% with 97% duty paid Motor Spirit, whereas the present issue is regarding mixing of duty paid Ethanol to the extent of 5% with 95% non-duty paid Motor Spirit. The adjudicating authority thus confirmed the duty to be paid by the respondent. 2.7 Aggrieved by Order-in-Original dated 19.11.2020, once again an appeal was filed by the respondent before CESTAT, WZB, Ahmedabad, who vide the impugned order dated 28/10/2021 allowed the appeal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e outset, learned Senior Advocate Mr.Mihir Joshi, raised a preliminary objection in relation to maintainability of the present tax appeal. He submitted that the issue involved in the present tax appeal is as to whether goods produced in a particular process are exciseable or not would fall within the meaning of expression, "determination of rate of duty of excise or the value of goods for the purposes of assessment of duty" as appearing Section 35(G)(1) and 35(L)(b) of the Central Excise Act and therefore, for the issue involved in the present appeal, the appeal would only be maintainable before the Hon'ble Supreme Court. He further submitted that, the assessee has been denied benefits of exemption notification for the limited period, which would have direct bearing in determining the levy of excise duty. The duty levied by the department has been deleted by the Tribunal, aggrieved by which, present appeal is filed. Thus, the appeal raises the issue of determination of rate of duty and therefore, appeal would not lie u/s Section 35(G)(1) of the Central Excise Act before this court and the appeal is required to be filed before the Hon'ble Supreme Court. In support of his submission, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions of notification, the appeal would be maintainable. 6. We have heard learned Counsel appearing for the respective parties. We have noticed that in the decision rendered by Hon'ble Supreme Court in the case of Navin Chemicals MFG & Trading Co. Ltd. (supra), the Hon'ble Supreme Court while deciding the appeal in relation to classification of goods and as to whether or not they are covered by exemption notification directly and proximately to the rate of duty, held as under: "11. It will be seen that sub-section (5) uses the said expression 'determination of any question having a relation to the rate of duty or to the value of goods for the purposes of assessment and the Explanation thereto provides a definition of it 'for the purposes of this sub-section? The Explanation says that the expression includes the determination of a question relating to the rate of duty; to the valuation of goods for purposes of assessment; to the classification of goods under the Tariff and whether or not they are covered by an exemption notification; and whether the value of goods for purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant and Mr. Dhaval Shah, learned advocate appearing on behalf of the respondent, at length and in great detail. We have also considered the reasons assigned by the Tribunal. The appellant is a manufacturer of glasslined vessels. It also reglasslines old glasslined equipments by following the procedure under Rule 173H of the Central Excise Rules, 1944 as it existed at the material point of time. Such glasslined vessels were cleared by it on payment of duty on the value of components used and rectified vessels on job charges. Proceedings were initiated against the respondent on the ground that activities undertaken by it amounted to 'manufacture' and it was required to pay duty on the entire value of re-glasslined vessels. It was the contention of the appellant that it is not liable to pay duty as the activities of re-glasslining of old vessels did not amount to 'manufacture' within the meaning of section 2[f] of the Act. The aforesaid stand of the assessee was not accepted by the Deputy Commissioner, Central Excise & Customs, Anand Division, Anand as well as Commissioner [Appeals]. Being aggrieved, the assessee approached the Tribunal against the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 35L of the Central Excise Act would be maintainable. 3. Having heard Shri R.J.Oza, learned Counsel appearing on behalf of the appellant and the proposed substantial questions of law referred to hereinabove and the controversy and the issues involved in the present Tax Appeals, we are of the view that the present Tax Appeals before this Court filed under Section 35G of the Central Excise Act would not be maintainable and the questions involved can only be decided by Hon'ble the Supreme Court under Section 35L of the Central Excise Act, 1944. 4. We are fortified by the aforesaid view of the decision of the Division Bench of this Court dated 03/07/2012 passed in Tax Appeal No. 973/2011 involving the similar issues holding that the Tax Appeal would not be maintainable under Section 35G of the Central Excise Act, 1944. 5. Identical question also came to be considered by the Punjab and Haryana High Court in the case of Commissioner of Central Excise, Panchkula v. Special Machine reported in 2009(242) E.L.T. 330 where the Punjab and Haryana High Court held that the dispute as to whether the assessee was covered by the exemption notification, was related directly and proximately to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contested by the parties from the initial stage is whether the activity of the assessee with respect to the goods in question cleared by them is manufacture? Thus, we do not find any substance in the first preliminary objection raised by the respondent assessee as the maintainability of the appeal before the High Court under Section 35G of the Act and accordingly, the said preliminary objection is rejected. We hold that the appeal is maintainable under Section 35G of the Act." 11. In the decision of Motorola India Ltd. (supra), relied upon by Mr.Raval, it has been held as under: "17. Reverting to the present case, it could clearly be seen that the only question that is involved is whether the assessee had violated the conditions of the exemption notification by not utilizing the imported materials for manufacturing of the declared final product and was, therefore, liable for payment of duty, interest and penalty. Neither any question with regard to determination of rate of duty arises nor a question relating to valuation of goods for the purposes of assessment arises in the present case. The appeals also do not involve determination of any question relating to the classificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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