TMI Blog2007 (5) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... d judgment dated 17-6-2005 passed by the Customs, Excise and Service Tax Appellate Tribunal ( "the Tribunal" for short) raising various contentions, giving rise to the substantial questions of law framed by this Court in the order dated 8th February, 2007. The details of which, at this stage, are not necessary. 3. On being noticed, the respondent/Commissioner of Customs and Sales Tax, Aurangabad (Maharashtra) appeared and resisted appeal and raised a preliminary objection to the maintainability thereof contending that the appeal directly and substantially raises questions relating to rate of duty and valuation of the goods, as such instant appeal would lie to the Hon'ble Supreme Court under Section 35-L of the Central Excise Act read with Section 130 of the Customs Act, and not before this Court. Background Facts :- 4. Before adverting to the rival contentions, it is necessary to sketch background facts, in short. 5. The appellant is engaged in the manufacture and sale of Optical Fibre. In a buoyant international market, the Appellant had carried out exports to the tune of Rs. 276 crores for the year ended on 31-3-2001. This led the appellant to set up a 100 % Export Orient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of challenge in the present appeal. 10. The maintainability of which, before this Court, under Section 35G, is a core issue raised in the preliminary objection; which alone is the subject-matter of this order. Rival Submissions :- 11. Mr. Sethna, learned Senior Counsel appearing for the Revenue, in support of the preliminary objection placed reliance on Section 35(G) and (L) of the Central Excise Act of which relevant part read as under :- Section 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 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 rate of duty of excise or to the value of goods for purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. (2) to (9 )....(not relevant). Section 35L. Appeal to the supreme court :- An appeal shall lie to the Supreme Court from - (a) any judgment of the High Court delivered- (i) …. …. …. (ii) …. …. …. (iii) …. …. …. (b) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of status would also determine whether the levy and collection of excise duty would be under Section 3(1) of the Central Excise Act, as a domestic manufacturing unit (holding of EPCG licence) or under the proviso to Section 3(1) of the said Act, by considering the clearances as a deemed import in respect of the unit having status of an E.O.U. 16. According to Mr. Salve, in the present case, the direct and proximate questions that require determination are questions of status and the question of date from which such status would become applicable. Consequently, according to him, in terms of the law declared in Navin Chemicals' case (supra), it is this Court which alone has a jurisdiction to hear and deal with the questions raised in the instant appeal. He reiterates that the issue of valuation is not direct and proximate issue involved in the appeal. In his submission, the issue of status is the only issue which is directly and proximately involved in the appeal. All other issues, according to him, would flow incidentally post the determination of the direct and proximate issue of status. 17. In rejoinder, Mr. Sethna submits that considering the factual matrix as demonstrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods 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 assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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