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TMI Blog2021 (8) TMI 828X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise Act, 1944 (for short, "the Act"). The assessee before this Court is the Indian Oil Corporation, which has paid an excise duty on SKO, which is Superior Kerosene Oil, as applicable at the relevant point of time. The Revenue, on the other hand, relied upon a Circular dated 22.04.2002 and its objection was that since SKO is mixed with Motor Spirit (MS) or High Speed Diesel (HSD), it will have to pay the duty, which is applicable on MS and HSD, as stipulated in the Circular dated 22.04.2002. Admittedly, the rate of duty on MS and HSD is higher than what it is on SKO. 4. The argument of the assessee was that the duty has to be paid at the time of removal of the goods from the gate and admittedly at the time when the goods were rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther things, "to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment." In case the dispute relates to rate of duty for the purposes of assessment, then an appeal would lie before the Supreme Court under Section 35L1 of the Act. 6. The two decisions primarily relied upon by the learned senior counsel for the assessee are Sterlite Optical Technologies Limited -Vs- Commissioner of C.Ex, Aurangabad 2007 SCC Online Bom 1435 and Commissioner of Customs & Central Excise, Jammu -Vs- Bharat Box Factory Limited 2008 SCC Online J&K 107. The case which was before the Jammu & Kashmir High Court was an appeal under Section 35 of the Act filed by the Revenue and a simil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Cess paid through Permanent Ledger Account for the month of August 2005. The Assistant Commissioner, Central Excise, vide his orders dated September 27, 2005 and October 3, 2005, sanctioned the refund claims of Rs. 32,00,562/- and Rs. 40,68,392/- and rejected the refund claims of Rs. 63,936/- and Rs. 81,368/- on account of Education Cess on the reasoning that Education Cess was not exempted under notification dated November 14, 2002. Aggrieved by the same, the respondent filed appeal before the Commissioner (Appeals), Central Excise, Jalandhar. The Commissioner (Appeals), vide his order dated December 7, 2005, upheld the order of the Adjudicating Authority and rejected the respondent's appeal. The respondent then filed appeal before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 notification; and whether the value of goods for purposes of assessment should be enhanced or reduced having regard to certain matter that the said Act provides for. Although this Explanation expressly confine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Rajasthan High Court decision in Laxmi Udyog v. Commissioner of Central Excise, 2002 (142) E.L.T. 27 (Raj.). The Delhi High Court also had the occasion to consider the scope of Section 35L of the Central Excise Act, 1944 in Perfect Electric Concern Pvt. Ltd. v. Assistant Collector/CCE, 2000 (118) E.L.T. 578 (Del.). 8. The Bombay High Court in. Sterlite Optical Technologies Ltd. v. Commissioner of C. Ex., Aurangabad, 2007 (213) E.L.T. 658 (Bom.) also considered the scope of Section 35G of the Central Excise Act, 1944. Placing reliance on Navin Chemicals Mfg & Trading Co. Ltd. v. Collector of Customs (supra) the Court observed that the word Assessment is used as meaning sometimes the computation of rate of duty, sometimes the assessab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns." 7. Mr. S.C. Keyal, learned counsel for the Revenue, on the other hand, would argue that the assessee has not paid their liability and the duty was liable to be paid by them on MS and HSD in terms of the Circular dated 22.04.2002. 8. Whichever way we look at this dispute, what goes to the root of the present dispute is as to at what rate the duty was liable to be paid by the assessee, i.e. whether it was a duty liable to be paid on SKO or on MS and HSD. That is the core issue. Sub-Section (1) of Section 35G states that an appeal will not lie before the High Court but before the Supreme Court if "among other things" the matter relates to rate of duty of excise. Therefore, even if one of the many issues relate to the rate of duty, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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