TMI Blog2014 (5) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... unit as claimed by the revenue. The claim of the assessee includes a determination of whether an exemption from payment of duty would be available under the exemption notification dated 31 March 2003 which applies to an EOU. Finally, a determination was necessary on whether the unit would continue to be an EOU till the final exit order was passed on 10 June 2011 and whether the assessee would be liable to pay duty on the finished goods as on 31 March 2011 which were exported on 30 April 2011 and 16 May 2011 before the passing of the final exit order. These issues would be intrinsically connected with the rate of the duty for the purpose of assessment. - Appeal not maintainable - Decided against Revenue. - Central Excise Appeal Defective No. - 37 of 2014 - - - Dated:- 12-5-2014 - Hon'ble Dr. Dhananjaya Yeshwant Chandrachud, CJ And Hon'ble Dilip Gupta,JJ. For the Appellant : Ramesh Chandra Shukla For the Respondent : Nikhil Agrawal ORDER The appeal by the revenue arises from a decision of the Customs, Excise and Service Tax Appellate Tribunal dated 5 September 2013. A preliminary objection has been taken to the maintainability of the appeal on beha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date when the No Objection Certificate was granted by the central excise authorities and the date of issue of the final de-bonding order by the Development Commissioner, it was open to an EOU to export the finished goods under a claim for advance authorisation and no excise duty could be charged on such goods as they had not been cleared under the DTA. This decision of the Tribunal is in question at the behest of the revenue. Section 35G(1) of the Central Excise Act, 1944 provides as follows:- Section 35G(1): An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. ............................................ Under section 35L(b), an appeal lies to the Supreme Court against an order of the Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which were earmarked and exported subsequently on 30.04.2011 and 16.05.2011 before the passing of the final exit order dated 10.06.2011. All these issues, according to the assessee, are intrinsically linked and connected to the adjudication of an issue falling within the scope of section 35L under which an appeal would lie only before the Supreme Court. The Supreme Court has had an occasion to deal with a similar provision contained in section 129D of the Customs Act in Navin Chemicals Manufacturing Trading Company Limited Vs. Collector of Customs 1993 (68) ELT 3 (SC). The Supreme Court has held as follows : 11. It will be seen that sub-section (5) uses the said expression 'determination of any question having a relation to the rate of duty or to the value of goods for the purposes of assessment' and the Explanation thereto provides a definition of it 'for the purposes of this sub-section'. The Explanation says that the expression includes the determination of a question relating to the rate of duty; to the valuation of goods for purposes of assessment; to the classification of goods under the Tariff and whether or not they are covered by an exemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teps in the process of assessment. This exercise would be an exercise; which can be said to be part of the assessment. In this view of the matter, in our view, the dispute involved in the appeal and the substance thereof is: what should be rate of duty on the goods cleared to the Domestic Tariff Area (D.T.A.). We have, thus, no hesitation to hold that the direct and proximate issues involved in the appeal for the purposes of assessment relate to the rate of duty applicable to the goods and the value thereof and the issue requiring determination of the status of the subject Unit would be one of the incidental issues. The contentions raised by the appellants, catalogued in Para (19) supra, also revolve around the rate of duty and valuation of goods for the purposes of assessment. In the present case, in our view, the preliminary objection to the maintainability of the appeal would have to be accepted. Among the issues, the issue which was considered by both the first adjudicating authority as well as by the appellate authority, was whether the duty which was payable on the finished goods which were lying in the stock at the time of de-bonding, was liable to be paid in accordance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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