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TMI Blog1984 (8) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... 1944, this Court has got no jurisdiction. He has pleaded that since this Court has got no jurisdiction, the appeal should be transferred to the Special Bench, Customs, Excise Gold (Control) Appellate Tribunal, R.K. Puram, New Delhi. 3. Shri P.R. Biswas, the learned Consultant and Shri U.C. Chatterjee, the learned Advocate have appeared on behalf of the Respondent. Shri Chatterjee, the learned Advocate has pleaded that nil rate is no rate. He has submitted that by virtue of Notification No. 80/80, dated 19th June, 1980 and other Notifications mentioned in the order, the respondent is entitled to exemption and no rate of duty is involved. He has pleaded that the respondent is following self-removal procedure system and the goods are delivered from the factory under Gate Pass under Rule 52-A and Rule 173-G of the Central Excise Rules, 1944. He has pleaded that in Column No. 9 of G.P. 1, there is mention of rate of duty and as such there is no dispute that rate of duty is involved and this Court has jurisdiction. Shri P.R. Biswas, the learned Consultant has also pleaded that Section 35B too is not applicable in the case of respondent. He has referred to the final portion of the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ector of Central Excise, either before or after the appointed day, under Section 35A, as it stood immediately before that day : Provided that the Appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where- (i) in any disputed case, other than a case where 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 is in issue or is one of the points in issue, the difference in duty involved or the duty involved ; or (ii) the amount of fine or penalty determined by such order, does not exceed ten thousand rupees. (2) The Collector of Central Excise may, if he is of opinion that an order passed by the Appellate Collector of Central Excise under Section 35, as it stood immediately before the appointed day, or the Collector (Appeals) under Section 35A, is not legal or proper, direct a Central Excise Officer authorised by him in this behalf (hereafter in this Chapter referred to as the authorised officer) to appeal on his behalf to the Appellate Tribunal against such order. (3) Every appeal under this sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made under this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard. (3) The Appellate Tribunal shall send a copy of every order passed under this section to the Collector of Central Excise and the other party to the appeal. (4) Save as provided in Section 35G or Section 35L, orders passed by the Appellate Tribunal on appeal shall be final. Section 35D. Procedure of Appellate Tribunal :- (1) The provisions of sub-sections (1), (2), (5) and (6) of Section 129C of the Customs Act, 1962 (52 of 1962) shall apply to the Appellate Tribunal in the discharge of its functions under this Act as they apply to it in the discharge of its functions under the Customs Act, 1962. (2) Every appeal against a decision or order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or the value of goods for purposes of assessment, shall be heard by a Special Bench constituted by the President for hearing such appeals and such Bench shall consist of not less than three members and shall include at least one judicial member and one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity in the eyes of law. The scheme of the act in the Customs, Excise Gold (Control) Appellate Tribunal is very peculiar in its own way. Under the Income Tax Act, 1961, a reference lies to the High Court under Sections 256(1) and 256(2) of the Income Tax Act, 1961, in respect of the orders passed by the Income Tax Appellate Tribunal, whereas in the case of Customs, Excise Gold (Control) Appellate Tribunal where an order has been passed by the Regional Bench of the Tribunal, a reference application lies to the High Court under Section 35G of the Central Excises and Salt Act, 1944 and to the Supreme Court under Section 35H of the said Act. Under Section 35-L of the Central Excises and Salt Act, 1944, the appeal lies to the Supreme Court. The same is reproduced as under : Section 35L. Appeal to Supreme Court :- An appeal shall lie to the Supreme Court from- (a) any judgment of the High Court delivered on a reference made under Section 35G in any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after the passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be nullity in the eyes of law. Order No. 2 of 1982 passed by the Hon ble President, Customs, Excise Gold (Control) Appellate Tribunal also clearly lays down that where rate of duty is involved, it has to be dealt with by the Special Bench. The same is reproduced as under : Four Special Benches shall be located at New Delhi, and shall deal with matters relating, among other things, to the determination of any question having a relation to the rate of duty of customs or of excise (hereinafter referred to as classification) or to the value of goods for purposes of assessment or duty of customs or of excise (hereinafter referred to as valuation). 6. I would also like to refer a judgment of the Special Bench in the case of M/s. Malwa Vanaspati Chemicals Co. Ltd., Indore v. Collector of Central Excise, Nagpur reported in 1983 ECR 1273D. I would like to reproduce para Nos. 17, 18 and 19 of the said judgment. 17. Sub-section (2) of Section 35D of the Act vests exclusive jurisdiction in the Special Bench of the Tribunal to hear and decide all appeals against a decision or order relating, among other things, to the determination of any question having a relation to the rat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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