TMI Blog2016 (9) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... nce limit of nylon yarn have not been fulfilled by the appellant. Any dispute relating to rate of duty, cannot be decided under Section 35G of the Act - appeal not maintainable. Maintainability - appeal pending for a period of 10 years - want of jurisdiction - Held that: - where there is a lack of inherent jurisdiction of the Court, the decree is then said to be a 'nullity'. Just because the case pending for a period of 10 years, it cannot be made maintainable as any judgement made in the lack of jurisdiction will be a nullity anyway - appeal not maintainable. Merits of the case need not be considered - appeal dismissed - decided against appellant. - Civil Miscellaneous Appeal No. 3397 of 2005 - - - Dated:- 30-8-2016 - S. Manikumar And D. Krishnakumar, JJ. For the Appellant : Mr. Raghavan Ramabadran for M/s. Lakshmi Kumaran For the Respondent : Mr. Rajnish Pathiyil, SCGSC for R2 JUDGMENT (Judgment of the Court was made by D. Krishnakumar,J) M/s. SRF Limited, represented by its Associate Vice President has filed this Appeal against the final order of Customs, Excise and Service Tax Appellate Tribunal, Chennai dated 06.04.2005 in No.558/2005. 2. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25.03.1997, respectively, demanding differential duty, on the ground that all the test reports had shown denierage of yarn, beyond the permissible limit, prescribed under the notification. 4. The appellant has filed reply to all the three show cause notices issued by the 2nd respondent. It is the case of the appellant that without considering the said explanation/ reply, the Assistant Commissioner of Central Excise, passed Order-in-Original No.19/2000 dated 30.03.2000, confirming the demand of ₹ 4,13,79,605/- and denied exemption, under Notification No.08/96 dated 23.07.1996, but without imposing any interest or penalty on the appellant. Aggrieved by the said order, the appellant preferred an appeal before the Commissioner of Central Excise (A), Chennai and that the same was confirmed by the Commissioner of Central Excise (A). Hence, the appellant preferred an appeal before CESTAT, Chennai, by raising the following grounds : i. that in view of the deposition of the Chemical Examiner during the cross examination before the Assistant Commissioner, the test reports cannot be sustained. ii. The test result of any batch is relevant only for the particular batch. iii. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will also be changed. Therefore, the appellant has reiterated that the sample taken from one particular batch, cannot be applied to the next batch. In this regard, learned counsel for the appellant placed reliance on the decision of this Court in the case of Ramalinga Choodambikai Mills Ltd., vs. Government of India, reported in 1984 (15) ELT (407) Mad. 8. Learned counsel for the appellant further contended that the respondent has denied the benefit of export, on the ground that the appellant has not been able to prove that the twine exported is made out of the quantity of yarn produced during the relevant. He, therefore submitted that rejection of the appellant's plea by the Tribunal, without considering the first in and first out method, is incorrect, as per the principles laid down, by the Hon'ble Supreme Court, in the case of TELCO vs. Municipal Commissioner, Thane, reported in (1993) Suppl. (1) SCC 361. Therefore, in the light of the above submissions, he prayed that the substantial questions of law framed by this Court, should be answered in favour of the appellant and that the appeal has to be allowed. 9. Per contra, learned counsel for the 2nd respondent woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laims that the period between Test No.4 dated 01.10.1996 and Test No.5 dated 31.12.1996, should be considered as the period, where the process of manufacture has been changed, and the Nylon Filament Yarn meets the standard of 210 denier with 14 variance, as the last test report is of the value 212.1 denier. He further contended that it is claimed by the appellant that the period between 4th and 5th test report should be considered, as compliance of the conditions set out in the exemption notification. The 4th test report was dated 01.10.1996, where the tenacity and denier test result was to the effect that denier was 224.8. The 5th report however showed a denierage of 212.1. It is the case of the appellant that in the meanwhile they have changed the process, and that therefore, the tenacity / denierage was reduced well within the limits of the exemption notification. It is further stated by the learned counsel for the 2nd respondent that the appellant had admitted that they had not intimated any process change to the department, whereby such reduction of denierage was recorded, when it is the case of the appellant that denierage is based on various factors, including the inputs use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commissioner of Central Excise or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be - (a) filed within one hundred and eighty days from the date on which the order appealed against is received by the Commissioner of Central Excise or the other party; (b) accompanied by a fee of two hundred rupees where such appeal is filed by the other party; (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question : Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. (5) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 notification; and whether the value of goods for purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for. Although this Explanation expressly confines the definition of the said expression to sub-section (5) of Section 129-D, it is proper that the said expression used in the other parts of the said Act should be interpreted similarly. The statutory definition accords with the meaning we have given to the said expression above. Questions relating to the rate of duty and to the value of goods for purposes of assessment are questions that squarely fall within the meaning of the said expression. A dispute as to the classification of goods and as to whether or not they are covered by an exemption notification relates directly and proximately to the rate of duty applicable thereto for purposes of assessment. Whether the value of goods f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the circumstances, the present appeal which relates to the applicability of the above referred circular, relates directly to the determination of rate of duty for the purpose of assessment and as such, in the light of the provisions of Section 35G read with Section 35L of the Act, this Court has no jurisdiction to entertain the appeal. (emphasis supplied) For the foregoing reasons, we hold that this appeal is not maintainable and accordingly, the same is dismissed. Since the appeal is held not maintainable, we do not propose to go into the merits of the questions of law raised for consideration. No costs. 17. The learned counsel for the appellant submitted that the appeal is within the jurisdiction of the Madras High Court, under Section 35G. It is also his submission that the issue in the instant appeal, is not on Classification of Yarn or valuation of yarn or the rate of duty on yarn or the eligibility of the exemption notification for 210d yarn, but is only a challenge to the error committed by the Customs, Excise and Service Tax Appellate Tribunal in applying the 5th test report, which result, is not the same as that of the previous four test reports. Therefore, according ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is a nullity never acquires finality and is thus open to challenge in the executing proceedings. 21. Therefore, principles of law has been settled in various decisions, by the Hon'ble Apex Court, as well as this Court that where there is a lack of inherent jurisdiction of the Court, the decree is then said to be a 'nullity'. Hence, we are not inclined to accept the contention of the learned counsel for the appellant that the instant appeal can be entertained, since it is pending before this Court, for a period of ten years. Further, we are of the view that the substantial questions of law raised by the appellant relates to the rate of duty. In view of the above, the substantial questions of law framed in the instant appeal, with regard to the maintainability of the instant appeal under Section 35G of the Central Excise Act, 1944, is answered against the appellant. Hence, we are not inclined to go into the merits of the case. On the above discussion and decisions, in the light of additional substantial questions of law, we are not inclined to entertain the appeal, on the grounds of lack of jurisdiction, under Section 35G of the Act. Since we have answered the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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