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2013 (4) TMI 481 - HC - Central ExciseEduction cess (for the third time) on the aggregate of the duties of the customs - whether a Tribunal is justified in holding that the education cess is not leviable under Section 93 (1) of the Finance Act, 2004 upon the 100% EOU in clearance of DTA? - Notification No. 23/03 CE dated 31.03.2003 ignored by Tribunal - Maintainability of appeal - Held that:- Exclusion clause in sub-section (1) of Section 35G is worded in an expansive manner and excludes all appeals arising out of orders of the Tribunal relating among other thing to the determination of any question having a relation to the rate of duty of excise. What is excluded from the purview of the High Court's jurisdiction is not merely an order of Tribunal which decides the rate of duty of excise but any order which concerns determination of any question which has relation to such rate of duty of excise. Expression “any question having a relation to the rate of duty” is a wide one. Whether the manufacturers are required to pay education cess on the computation of the customs duty and the CVD on which, once they have already paid such education cess Tribunal ruled in favour of the manufacturers and rejected the Revenue's case that such education cess was required to be paid once again. Thus such decision of the Tribunal would certainly be covered under the expression "the order determining a question having relation to the rate of duty of excise". If the Department is correct in its stand, the manufacturers would have to pay excise duty at a rate higher than what they have been paying. Computation of excise duty would have to include component of education cess . On the other hand, if the manufacturers are correct in their stand, such education cess would be excluded. In any case, it would have a direct bearing on the rate at which manufacturers should pay the excise duty on their clearances in the DTA from EOU Units. In that view of the matter, the respondents' preliminary objection is required to be upheld. 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).
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