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2010 (9) TMI 756 - HC - Central ExciseCaptive consumption of Lower Sulphur Heavy Stock (LSHS) for generation of electricity as fuel - Diversion of electricity for purposes other than the use in or in relation to the manufacture of petroleum products i.e. for construction purpose within the factory premises, lighting MRPL residential colony and sale to M/s. Hindustan Gas Industries Ltd. (HGIL). - Meaning and scope of the term 'Rate' - Challenge to jurisdiction - Held that:- The phrase ‘rate of tax’ does not mean fraction of tax payable because what is the tax payable i.e. fraction payable is decided by the legislature. Once that is prescribed by the legislature in the Act, the Court cannot sit in judgment and alter or modify the said rate of tax. The Court has no jurisdiction to go into the correctness or otherwise of the rate of tax payable in the sense the rate prescribed by the legislature. Therefore, the argument that the rate of tax means only the rate at which tax is payable or a fraction is unsustainable. Jurisdiction of High court - Held that:- an order passed by the Appellate Tribunal relating to the determination of any question having relation to the rate of duty of excise or to the value of goods for the purposes assessment lies to the Supreme Court under Section 35L(b) the Act and not to the High Court under Section 35(G). Captive consumpion of LSHS - All these questions relate to determination of rate of duty payable, the value of goods manufactured and entitlement of exemption under notification. They have to be decided by the Apex Court in an appeal preferred under Section 35L(b) of the Act and not by the High Court in an appeal preferred under Section 35(G) of the Act. The learned counsel for the assessee is justified in contending that this appeal preferred by the Revenue challenging the order passed by the Appellate Tribunal holding that the impugned goods are not excisable and accordingly, setting aside the levy of duty and the demand notice issued by the department is not maintainable before the High Court. - Appeal dismissed.
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