TMI Blog2015 (7) TMI 1229X X X X Extracts X X X X X X X X Extracts X X X X ..... e the matter before the Supreme Court, if so advised. Appeal dismissed with liberty granted to the appellant/assessee to move before the Supreme Court. - C.M.A. No. 3748 of 2005 - - - Dated:- 3-7-2015 - R. Sudhakar and K.B.K. Vasuki, JJ. Shri R. Karthikeyan, Counsel, for the Appellant. Shri S. Xavier Felix, SC, for the Respondent. JUDGMENT [Judgment per : R. Sudhakar, J.]. - Aggrieved by the order of the Tribunal in partially modifying the order passed by the Commissioner (Appeals), the appellant/assessee is before this Court by filing the present appeal. This Court, vide order dated 28-11-2005, while admitting the appeal, framed the following substantial questions of law for consideration :- (i) Whether the Tribunal was correct in holding the Circular No. V/28/30/3/97-CX1, dated 20-5-97 is inapplicable to the facts and circumstances of the case especially when appellant-company is able to prove that the goods are filled manually and are not sealed with pilfer proof caps? (ii) Whether the Tribunal was correct in upholding the order of the Commissioner of Central Excise without addressing the issue raised by the appellant-company on the aspect of li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d hereinbelow :- 7. As per Section 35G of the Central Excise Act, 1944, any person who is aggrieved by any order of the Appellate Tribunal not being an order relating, among other things, to the determination of any question having relation to the rate of duty of excise or to the value of goods for purpose of assessment can approach the High Court. In the instant case, the appellant had raised questions of law on the concept of manufacture which has a bearing on the rate of duty leviable on the goods concerned. In other words the crux of the issue involved is whether the impugned goods chargeable to the appropriate rate of duty of excise duty consequent to the law of interpretation involving whether repacking would amount to manufacture or not. It is therefore submitted that this Hon ble High Court is not the appropriate legal forum for deciding the above issue. The appellant should have approached the Hon ble Supreme Court for seeking relief under Section 35L(b) of the Central Excise Act, 1944, which states that an appeal shall lie to Supreme Court from any order passed by the Appellate Tribunal relating, among other things, to the determination of any question having a relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, questions arise directly and proximately as to the rate of duty or the value of the goods. 12. This, then, is the test for the purposes of determining whether or not an appeal should be heard by a Special Bench of CEGAT, whether or not a reference by CEGAT lies to the High Court and whether or not an appeal lies directly to the Supreme Court from a decision of CEGAT : does the question that requires determination have a direct and proximate relation, for the purposes of assessment, to the rate of duty applicable to the goods or to the value of the goods. (emphasis supplied) 9. Section 35G of the Act deals with appeal to the High Court against the order of the Tribunal. Section 35G(1) explicitly exempts appeal in respect of determination of any question in relation to rate of duty. For better clarity, the relevant provision of the Act is extracted hereunder :- 35G. Appeal to High Court. - (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by the High Court and as well as by the Supreme Court. Any order passed by the Appellate Tribunal other than the determination of any question having a relation to the rate of duty of excise or to the value of duty of goods for the purpose of assessment falls within the jurisdiction of the High Court in appeal under Section 35G. If the matter pertains to determination of any question having a relation to the rate of duty of excise or to the value of the goods for the purpose of assessment, the same falls within the jurisdiction of the Supreme Court under Section 35L(b). In other words, the determination of any question relating to the rate of duty of excise or to the value of goods for the purpose of assessment, cannot be agitated in both the forums. Expressly the statute has excluded the jurisdiction of the High Court in appeal under Section 35G and exclusive jurisdiction is conferred on the Supreme Court in these matters. The language employed in these two sections read together is clear and there is no scope for any doubt or confusion in this regard. * * * * * * * * * 42. Broadly the following disputes do not fall within the jurisdiction of High Court und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the above principles enunciated by the Supreme Court as also the disputes that fall within the jurisdiction of the High Court, as culled out by the Karnataka High Court in its decision in Mangalore Refineries case (supra) in mind, a look at the facts of the case clearly establish that the issue pertains to rate of duty that is payable by the respondent. In such a scenario, in view of the above position of law, which exempts appeal to be entertained by the High Court in relation to rate of duty, the objection as raised by the respondent is liable to be sustained in view of the decision of the Supreme Court in Navin Chemicals case (supra), as also the judgment of the Karnataka High Court in Mangalore Refineries case (supra). The abovesaid view has also been followed by this Court in Commissioner of Central Excise v. Vadapalani Press (2014-TIOL-2208-HC-MAD-CX = 2015 (320) E.L.T. 238 (Mad.). 12. In the above circumstances, 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/assessee to pursue the matter before the Supreme Court, if so advised. 13. Accordingly, this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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