(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1. We have Mr. Y. N. Ravani, learned Counsel appearing for Central Excise & Customs Department and Mr. Bipin Jain, learned Counsel appearing for the respondent.
2. The Appeal is admitted on the following substantial questions of law:
“Whether the Tribunal below committed substantial error of law in misinterpreting the provision of clauses 4 and 5 of the Notification No.8/2003-CE dated 1st March 2003 by allowing the exemption benefit and not appreciating the fact that product can be marketed under only one brand name and there cannot be two brands in respect of same product and extending the SSI exemption benefit to the respondent inspite of the specific provision that goods bearing brand name/trade name of another person will not qualify for SSI exemption as par.
Whether the Tribunal below committed substantial error of law in not appreciating the provision of exemption Notification No.8/2003-CE dated 1st March 2003 and allowed the benefit though the respondent has cleared their goods with other's brand name.”
3. Learned Counsel for the respondent has raised the objection about the maintainability under section 35G of the Central Excise Act, 1944 and an appeal shall lie under section 35L before the Hon'ble Supreme Court as the determination of question involves rate of duty of Excise or to value of goods for the purpose of assessment.
4. The Hon'ble Apex Court in the case of Navin
Chemicals Mfg. & Trading Co. Ltd. V/s. Collector of Customs reported in 1993 (68) E.L.T. 3 (S.C.) in paragraph 11 has held as under :
“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 for. Although this Explanation expressly confines the definition of the said expression to sub-section (5) of Section 129D, it is proper that the said expression used in the other parts of the said Act should be interpreted similarly. The statutory definition accords with the meaning we have given to the said expression above. Questions relating to the rate of duty and to the value of
goods for purposes of assessment are questions that squarely fall within the meaning of the said expression. A dispute as to the classification of goods and as to whether or not they 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, question arises directly and proximately as to the rate of duty or value of the goods.”
5. In this Tax Appeal, the question raised by the Central Excise & Customs Department is as to whether clauses 4 and 5 of the notification dated 01.03.2003 have been misinterpreted by allowing exemption benefit amounts to determination of rates of duty payable by the respondent. In the facts of the case, the issues involved in their ultimate analysis would be linking with the rates of duty and hence would relate to the rate of duty for the purpose of assessment. It thus falls within the expression - 'determination of any question having a relation to the rate of duty or to the value of goods for the purposes of assessment'.
6. Therefore, such a question can only be decided by the Hon'ble Apex Court under section 35L of the Central Excise Act, 1944.
7. Therefore, in our considered opinion, this Tax Appeal is not maintainable under section 35G of the Central Excise Act, 1944. The Tax Appeal is dismissed as not maintainable with a liberty to the appellant to prefer appropriate appeal under section 35L of the Central Excise Act, 1944 before the Hon'ble Supreme Court.
(V. M. SAHAI, J.)
Sunil W. Wagh
(N. V. ANJARIA, J.)