(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. Revenue is in appeal against judgement of the Customs, Excise and Service Tax Appellate Tribunal (“the Tribunal” for short) dated 22.7.2005. Following substantial questions of law were farmed under order dated 27.2.2007:
“(1) Whether or not the term “manufacturer” would include any process specified in sub- clause (i) and (ii) of Section 2(f) of the Central Excise Act, 1944 where a manufacturer procures different components and assembles them on site leading to a product ?
(2) Whether or not a manufacturer who acquires different components from its agents and assembles it on site can be termed to be a “manufacturer” within the meaning of Section 2(f) of the Central Excise Act, 1944 ?”
2. When the appeal was taken up for hearing, learned counsel for the respondents raised preliminary objection contending that appeal is not maintainable in view of provisions contained in Section 35G of the Central Excise Act (“the Act” for short). He submitted that the first question framed by this Court was whether the activity carried out by the assessee was a manufacturing activity. He submitted that questions involved in the appeal cannot be entertained by the High Court since jurisdiction exclusively lies with the Supreme Court. In this respect, counsel relied on the following decisions :
1) Commr. Of C.Ex., Hyderabad-IV v Shriram Refrigeration Industries reported in 2009(240) E.L.T. 201(A.P.)
2) Commissioner of C. Ex & Customs v. Swiss Glass Coat Equipments Ltd. reported in 2011(273) E.L.T. 364 (Guj.)
3. We have also heard learned counsel for the Revenue on this limited question.
4. Undoubtedly, the first question framed by this Court in the present appeal pertains to whether the activity carried on by the respondent can be termed as manufacturing activity. Section 35G of the Act pertains to appeals which would be competent before the High Court. Sub-section(1) of Section 35G provides that appeal on substantial question of law shall lie to the High Court from every order passed by the Appellate Tribunal, 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.
5. Correspondingly Section 35L of the Act pertains to appeal to Supreme Court. Clause(b) of the Section 35L provides for appeal to Supreme Court against any order passed by the Appellate Tribunal 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 purposes of assessment.
6. Division Bench of this Court in case of Swiss Glass Coat Equipments Ltd.(supra) held that :
“5. The Andhra Pradesh High Court in the case of Commissioner of Central Excise, Hyderabad v. Shriram Refrigeration Industries [supra] has held that the question as to whether any process undertaken by a manufacturer amounts to manufacture or not, and if the goods produced during that process are excisable or not would fall within the meaning of the expression `determination of rate of duty of excise or the value of the goods for the purposes of assessment of duty' used in section 35G[1] and section 35L[b] of the Act. We are in agreement with the view taken by the Andhra Pradesh High Court. In the circumstances, the present appeal which raises a question as to whether re-glass lining of old vessels amounts to manufacture or not, involves determination of a question relating to the rate of duty of excise or value of goods for the purposes of assessment, would lie before the Supreme Court and not before this Court.”
7. We notice that question no.2 also is in relation to manufacturing activity.
8. Under the circumstances, we are of the opinion that looking to both the questions framed by this Court, this appeal is not maintainable before this Court.
9. Appeal is therefore, dismissed only on this ground.
(Akil Kureshi,J.) (Harsha Devani,J.) (raghu)