TMI Blog2015 (3) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... 07 - SUPREME COURT OF INDIA), and that of the Gujarat High Court in the case of in Commissioner of Central Excise v. JBF Industries Ltd., [2010 (12) TMI 437 - GUJARAT HIGH COURT], held that appeal is not maintainable. - while this Court is not inclined to deal with the matter, while disposing off the present appeal as not maintainable, is inclined to grant liberty to the appellant/Revenue to pursue the matter in accordance with law, if so advised. - Appeal not maintainable. - C.M.A. No. 3777 of 2008 - - - Dated:- 26-2-2015 - R. Sudhakar And R. Karuppiah,JJ. For the Appellant : Mr. Vijay Anand For the Respondent : Mr. Mohana Sundaram JUDGMENT (Delivered By R. Sudhakar, J.) Aggrieved by the order of the Appellate Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Heading 84.13 of the CETA Schedule. The respondent unit is a Proprietary concern of Smt.G.R.Rani, W/o Shri G.Radhakrishnan. The entire quantity of the said electronic fluorescent lanterns manufactured by the unit was sold to M/s. Rolls Marketing Agency, partnership concern and the partners were Mr.G.Radhakrishnan, husband of Smt.G.R.Rani and Shri.Raja Chakravarty, brother of Smt.Rani. Subsequently, from August, 1995 onwards, the marketing firm was converted into a private limited company in the name of M/s. Rolls Appliances (P) Ltd. with Shri G.Radhakrishnan as the Managing Director and Shri.Raja Charavarty as Director. Thereafter, another marketing concern by name M/s.Emergency Power Electronics Ltd. was created. The respondent sol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicates the same. In fact, the show cause notice states that the appellants are clearing the goods to their sister concerns. Prima facie we find that the impugned order is beyond the scope of the show-cause notice. In the case of CCE vs. Electro Services (P) Ltd. (2001 (127) ELT 828(Tri.Del)) it was held that assessee should not be treated as related person merely because partners of the assessee are the Directors of the buyer company. Nothing on record to substantiate that there was mutuality of interest of money or money flow back in between the two concerns. Buyers cannot be said to be sole selling gent, in absence of any allegation in the show cause notice or in the impugned order. In the case of Mineral Wool Mfg. (I) Pvt.Ltd. vs. CCE, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lose relatives of Directors of appellant company can be considered neither related perosn nor favoured buyer, one being a corporate concern and other being a partnership concern section 4(4)(c) of Central Excise Act, 1944. 6. In view of the above decisions, we are inclined to allow the appeals. 5. Aggrieved by the said order of the Tribunal, the Revenue is before this Court by filing the present appeal raising the above-mentioned substantial questions of law. 6. At the outset, the learned counsel for the respondent objected to the maintainability of the appeal before this Court on the above questions of law raised by the department. It is the plea of the learned counsel for the respondent that Section 35G of the Central Excise Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment, to the rate of duty applicable to the goods or to the value of the goods. (emphasis supplied) 10. In an identical circumstance, this Court in the case of The Commissioner of Central Excise, Chennai - II V. Vadapalani Press and another reported in 2014-TIOL-2208-HC-Mad-CX, while dealing with the objection raised by the assessee as to the maintainability of the appeal, after following the above-said decision of the Supreme Court in Navin Chemicals Manufacturing Trading Co. Ltd. - Vs Collector of Customs (1993 (68) ELT 3 (SC)), and that of the Gujarat High Court in the case of in Commissioner of Central Excise v. JBF Industries Ltd., 2011 (264) ELT 162 (Guj.), held that appeal is not maintainable. 11. In such circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X
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