TMI Blog2009 (8) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... t for determination of such question, remedy of appeal lies to Supreme Court under Section 35L – appeal to HC no maintainable - 48 of 2005 (O&M) - - - Dated:- 3-8-2009 - M.M. Kumar and Jaswant Singh, JJ. REPRESENTED BY : Shri Sanjeev Kaushik, Sr. Standing Counsel, for the Appellant. Shri A.K. Jain, Advocate, for the Respondent. [Order per : M.M. Kumar, J.]. - This order shall dispose of C.E.A. Nos. 48 and 120 of 2005 as common questions of law and facts are involved. These appeals have been tiled by the revenue under Section 35G of the Central Excise Act, 1944 (for brevity, "the Act') challenging order dated 28-4-2004 [2004 (169) E.L.T. 215 (Tri. - Del.)] and order dated 2-12-2004, passed by the Customs, Excise and Service T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The statements of various employees working in the aforementioned industrial units were also recorded under Section 14 of the Act. On 23-3-1992, the statement of Shri R.M. Jain, Proprietor of the respondent as well as Shri Vipin Jain, Accounts Assistant of the respondent was recorded. Summons were issued to Shri R.M. Jain to appear on 22-5-1992, 22-6-1992 and 10-7-1992 but he failed to appear on one pretext or the other. After recording the statements and analyzing the same it was found that Shri R.M. Jain, Proprietor of the respondent was providing readymade coating material to different units, which is an essential ingredient required for the manufacture of welding electrodes, through his other concern, namely, M/s. Perfect Industries. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries be not treated as manufacture and clearance for and on behalf of the respondents in respect of the years 1987, 1988 and 1989 and an amount of Rs. 78.55,951/- be levied towards Central Excise Duty for the period from 1-10-1987 to 31-7-1992 on the value exceeding general exemption limit which was prevalent from time to time in terms of Notification No. 175/86, dated 1-3-1986. Demand of duty from other units were also raised. They were also called upon as to why penalty under Rules 9(2) and 173Q of the Rules be not imposed. 5. On 14-2-2002, the Commissioner of Central Excise, Delhi-Adjudicating Authority after adjudication confirmed the demand of Rs. 77,08,165/- against the respondent under Section 11A(1) of the Act and also raised dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the exemption notification without taking into consideration the composition of partnership, existence of the factory, licence, nature of the goods manufactured basic infrastructure required for independent functioning of manufacturing enterprises?" 8. It would also be necessary to read out the following questions of law raised by the revenue-appellant in the other appeal, namely, CEA No. 120 of 2005 :- "(i) Whether the exemption under Notification No. 8/2001-C.E., dated 1-3-2001 and Notification No. 8/2002-C.E., dated 1-3-2002 would be admissible to a manufacturer using the brand names, registered or unregistered, of another person, in terms of the two decisions (supra) of the Hon'ble Supreme Court and in terms of para 4 and pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r words, the exemption notifications are part of the Act. It has been contended that the substantial questions of law framed by the revenue-appellant also refer to the interpretation of the exemption Notification No. 175/86-C.E., dated 1-3-1986 and, therefore, this Court has no jurisdiction to entertain the instant appeals because under Section 35G of the Act, no appeal against the order passed by the Tribunal lies where the question relating to determination of rate of duty of excise or value of goods for the purposes of assessment is involved. 10. Having heard learned counsel for the parties and perusing the paper book with their able assistance we are of the considered view that there is merit in the preliminary objections raised by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered in the case of Commissioner of Central Excise. Chandigarh-I v. Suraj Udyog Ltd., 2003 (158) E.L.T. 684 (P H). 11. The question of law formulated by the revenue-appellant in the instant appeals also refers to exemption under Notification No. 175/86-C.E. as amended vide Notification No. 1/93-C.E., dated 28-2-1993 in CEA No. 48 of 2005 Notification Nos. 8/2001-C.E., dated 1-3-2001 and Notification No. 8/2002-C.E., dated 1-3-2001 in CEA No. 120 of 2005, relating to the rate of duty of excise. The Notification No. 1/93-C.E., dated 28-2-1993 was subject of consideration of a Division Bench of Bombay High Court (at Goa) in the case of Commissioner of Customs and Central Excise, Goa v. Primella Sanitary Products (P) Ltd., 2002 (145) E.L.T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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