TMI Blog2013 (4) TMI 481X X X X Extracts X X X X X X X X Extracts X X X X ..... tation 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). - Tax Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... versy involved, these appeals would not be maintainable. We have heard learned advocates for the parties only on this limited preliminary question of maintainability of these Appeals. To appreciate the contentions and to give our findings thereon, it would be necessary to record the facts leading to these appeals. 3. Since on all vital aspects of the matters facts are similar, they may be noticed as arising in Tax Appeal No. 2012 of 2010. 4. Respondent-Messrs. Sarla Performance Fibres Limited {hereinafter to be referred to as, "the manufacturer"} is a 100% Export Oriented Unit {"EOU" for short} which is engaged in manufacture of several kinds of yarn which fall under Chapter 54, 55 56 of the Central Excise Tariff Act, 1985. The respondent-manufacturer clears a portion of its goods for export, whereas a portion of goods manufactured is also cleared in domestic tariff area {"DTA" for short}. When the respondent clears such goods in the DTA area, it is liable to pay excise duty in terms of proviso to sub-section (1) of Section 3 of the Act. In terms of the said proviso and the notifications issued by the Central Government, the manufacturer is required to pay excise duty at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent challenged the order-in-original before the Commissioner [Appeals]. The Commissioner [ Appeals ], by his order dated 12 th July 2007 confirmed the decision of the adjudicating authority and dismissed the respondent's appeal. 9. The respondent carried the matter in appeal before the Customs, Excise Service Tax Appellate Tribunal ["Tribunal" for short]. The Tribunal, by its impugned order dated 26 th February 2010 held as under : - "...In fact this is the ground on which the department has proceeded to add education cess once again after arriving at aggregate of customs duties. The answer of this is the conclusion drawn by us with regard to the contention that education cess is only a surcharge and is in the nature of enhancement of duties. Therefore, once education cess is added to the customs duties to arrive at aggregate of customs duties, the question of charging education cess again does not arise. Because once it is a enhancement, it is part of the relevant type of the duty. What is required for the purpose of proviso to Section 3 of the Central Excise Act 1944 is to arrive at aggregate of customs duties and once we take a view that education cess is part of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... often than not, any decision on these aforesaid aspects not only affects the interest of the manufacturers who are parties thereto, but also to the manufactures of those products throughout the country. In a country governed by Parliamentary legislation because of the territorial bifurcation in forming states and because of the divergent opinion which is possible, the excise duty payable would vary from place to place. In order to bringing uniformity in the levy of excise duty throughout the country and consequently to see that the country's finance is not affected, the Parliament has vested the jurisdiction to decide the disputes with the Apex Court. Therefore, we see a duty policy underlining this bifurcation of the jurisdiction between the Apex Court and the High Courts. All other matters other than what is set out above, which relates to the individual manufacturers and all disputes based on assessment orders which have attained finality, such as the benefits to which they are entitled to, refunds, duty drawbacks, rebates, etc., which relate to a particular manufacturer falls within the jurisdiction of the High Courts." 13. In case of Commissioner of Central Excise, Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which raises a question as to whether re-glass lining of old vessels amounts to manufacture or not, involves determination of a question relating to the rate of duty of excise or value of goods for the purposes of assessment, would lie before the Supreme Court and not before this Court. 15. On the other hand, learned counsel appearing for the Revenue opposed the preliminary objection contending that the issue pertains to the question whether the manufacturers are required to pay education cess or not. Question does not relate to the rate of duty. Appeals are, therefore, maintainable. They submitted that the decision of Karnataka High Court in case of Mangalore Refineries Petrochemicals Limited [ Supra ] has been carried in appeal. SLP before the Supreme Court is pending. 16. Having thus heard learned counsel for the parties, we may notice that sub-section (1) of Section 35G of the Act provides for appeal to the High Court. Sub-section (1) thereof which is relevant for our purpose read as under:- "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 1 st day of July, 2003 (not be ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
