TMI Blog2008 (3) TMI 728X X X X Extracts X X X X X X X X Extracts X X X X ..... on such retrospective effect. 2 Respondent preferred a caveat and raised a preliminary objection regarding the maintainability of appeal stating that the exemption notification has direct nexus with the rate of duty and hence under section 35G of the Act no appeal would lie to the High Court but only before the Supreme Court under section 35 -L of the Act. 3 Mr . V.K. Magoo, learned ASGI appearing for Union of India submitted that the appeal is maintainable, since the question framed is not having any relation to rate of duty or value of goods for the purposes of assessment but with regard to the location of the respondents unit that is whether it is situated under Industrial Area Export Promotion (EPIP) or in SIDCO Industrial Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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, (2) The Commissioner of central Excise or the other party aggrieved by any order passed by the Appellate tribunal may file an appeal to the High court and such appeal under this sub -section shall be - (emphasis added) (a) filed within one hundred and eighty days from the date on which the order appealed against is received by the Commissioner of Central Excise or the other party; (b) accompanied by a fee of two hun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (8) Where there is no such majority, the Judges shall state the point of law upon which they differ and the case shall, then, be heard upon that point only by one or more of the other Judges of the High court and such point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it. (9) Save as otherwise provided in this Act, the provisions of the code of civil procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section. Section 35L of the Act provides appeal to the Supreme Court. The operative portion of the same is extracted herein as under: 35 -L. Appeal to Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02. Respondent claimed the benefit of central excise duty exemption as a new unit and submitted refund claims for the months of June, August and September, 2003 amounting to ₹ 69,03,193. In support of their claim, a certificate from Directorate of Industries Jammu regarding date of commencement of commercial production and certificate of Naib Tehsildar, Bari Brahmna relating to location of the Unit were produced. On scrutiny of this documents, it was found that the unit of the respondent situated under Khasra No. 394 in the area of Kartholi. Relevant portion of the Annexure to the notification No. 56/2002 -CE dated 14.11.2002 stipulates that Khasra No. i.e. 394 falls under the Industrial Area Export Promotion Industrial Park (EPIP), K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which came up for interpretation was section 129D of the Central Excise and Salt Act 1944, which is pari materia with section 35G(l). Dismissing the appeal, the Apex Court held that the order of adjudicating court did not have any direct or proximate relation with either to the rate of duty or to the value of goods thereof. 8 Principle laid down by the Apex Court in the above decision could be applied to the facts of the present case and hence two other decisions cited by the learned counsel for the respondents are inapplicable in the facts and circumstances of the case. In Union of India v. Auto Ignition Ltd (2002 (142) E.L.T. 292 (Bom), the Bombay High Court has held that the eligibility to exemption directly relates to rate of duty an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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