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2017 (4) TMI 695 - HC - Central ExciseBenefit of N/N. 50/2003-CE dated 10.06.2003 - setting up of new industrial unit - enhancement of installed capacity - manufacture of LPG Cylinders - the stand of the Department was that there were two types of manufacturing divisions, namely, the Cylinder Division and the Conductor Division. Therefore, the installed capacity must be of both the Divisions together. The enhancement of installed capacity only relating to the Cylinder Division would not suffice to claim benefit under Clause 2(b). Whether these appeals lie under Section 35G of the Excise Act and is maintainable? - Held that: - in a case CCE, Mangalore vs. Mangalore Refineries & Petrochemicals Ltd., [2010 (9) TMI 756 - KARNATAKA HIGH COURT ], a Bench of the Karnataka High Court took the view that an order of the appellate Tribunal deciding the issue whether the goods are entitled to exemption relates to the rate of duty and the appeal before the High Court was not maintainable. We may, incidentally, notice from para 7 of the said judgment that, actually, the order of the Tribunal was that the product in question was not marketable and it is not exigible; but the assessee questioned the maintainability of the appeal also on the ground that, even if the goods were exigible, the further question would arise as to whether the duty payable was completely exempted by way of a notification. By virtue of sub-section (2) to Section 35L, the courts are obliged to proceed on the basis that a decision relating to “taxability” or “excisability” is to be treated as a question which has a relation with the rate of duty. This is virtually a deeming provision and, therefore, we need not actually explore the question even as to whether it really has a relation with the rate of duty. The appeals are not maintainable for the reason that the appeals are maintainable only before the Supreme Court under Section 35L of the Excise Act in the context of the interpretation we have placed on the words “taxability” and “excisability”. We need not, therefore, further explore the question whether de hors sub-section (2), the case would fall under sub-section (1) of Section 35G or Section 35L, as the case may be. Appeal dismissed being not maintainable.
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