TMI Blog2023 (1) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... y definition of the said expression indicates that it has to be read to limit its application to cases where, for the purposes of assessment, questions arise directly and proximately as to the rate of duty or the value of the goods. The dispute in the present appeal, is in relation to whether the assessee was covered by the exemption notification, where the exemption notification was related directly and proximately to rate of duty applicable and, therefore as held by the Hon ble Supreme Court in case of Navin Chemicals MFG Trading Co. Ltd, appeal on the question of law before the High Court would not be maintainable and an appeal under section 35 L of the Central Excise Act, 1944, would be maintainable before the Hon ble Supreme Court. Appeal dismissed. - R/TAX APPEAL NO. 527 of 2022 - - - Dated:- 16-12-2022 - HONOURABLE MS. JUSTICE SONIA GOKANI AND HONOURABLE MRS. JUSTICE MAUNA M. BHATT Appearance: Mr Nikunt K Raval (5558) for the Appellant(s) No. 1 Mr Mihir Joshi, LD. Senior Counsel, Nisarg Desai, Pravalikha Batthini, Dimple Gohil For Gandhi Law Associates (12275) for the Opponent(s) No. 1 ORAL JUDGMENT (PER : HONOURABLE MRS. JUS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal dated 24.02.2006, respondent filed appeal before the CESTAT, WZB, Ahmedabad. The appellate authority vide Order No. A/3074/WZB/AHD/2007 dated 03.12.2007 remanded the matter with a direction to the Adjudicating Authority to examine the effect of Section 11C and Notification No.25/2006-CE dated 20.11.2006 and also to decide the issue of manufacture in light of CBEC Circular No.83/83/94 dated 13.12.1994. Circular dated 13.12.1994 concerns, mixing of duty paid Methanol to the extent of 3% with 97% duty paid Motor Spirit and the present issue is mixing of duty paid Ethanol to the extent of 5% with 95% non-duty paid Motor Spirit. 2.4 Pursuant to remand as directed by CESTAT, the Commissioner of Central Excise, Rajkot once again confirmed the demand of duty along with interest. In the order dated 02.11.2010, penalty was also imposed. In the order dated 02.11.2010, reliance was placed on Draft Circular F.No.84/04/2007-CX of CBEC website uploaded in November 2007, purporting to withdraw the earlier Circular dated 13.12.1994. The said Circular dated 13.12.1994, stipulates that process of mixing additives in normal petrol/diesel resulted into emergence of a new product having a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Aggrieved by the order of the CESTAT, WZB, Ahmedabad dated 28.10.2021 , the present appeal is filed proposing the following questions of law: (i) Whether the order passed by the Hon ble Tribunal holding that activity of blending of 5% Ethanol with 95% of Motor Spirit does not amount to manufacture? (ii) Whether the order passed by the Hon ble Tribunal without taking cognizance of the fact that the product namely, 5% Ethanol Blended Petrol is identified as excisable goods wherein a specific exemption was granted to said description of goods vide Notifications No.62/2002-CE, No.63/2002-CE and No.64/2002-CE, all dated 31.12.2002 while excise payable on Motor Spirit used in 5% Ethanol Blended Petrol was partially exempted? (iii) Whether the order passed by the Hon ble Tribunal holding that the Motor Spirit cannot be treated as intermediate product, without taking cognizance of the provisions of Exemption Notifications No.62/2002-CE, No.63/2002-CE and No.64/2002-CE, all dated 31.12.2002 (issued under Section 5A of the Act), according to which duty of excise was payable on Motor Spirit when used in EBMS at intermediate stage is proper ? (iv) Whether the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise v. The Glovis India Private Limited reported in 2020 (3) TMI 456. 5. Responding to the submissions of learned Senior Advocate Mr.Mihir Joshi, learned Standing Counsel Mr.Nikunt Raval submitted that the appeal before the High Court is maintainable because consideration in this appeal is in relation to, whether the process carried out by assessee amounts to manufacture as envisaged under section 2(f) of the Act or not. Further in view of Section 5A of the Act, if Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette, exempt generally either absolutely or subject to such conditions (to be fulfilled before or after removal) as may be specified in the notification, exciseable goods of any specified description, from the whole or any part of the duty of excise leviable thereon. In this case, on account of withdrawal of notification dated 13.12.1994, the exemption benefits were not made available to the respondent during 01.07.2004 to 07.08.2004 and there is no illegality in the same. Thus, the issue involved in this appeal is whether goods produced in the process by adding 5% Ethanol in the Mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 for purposes of assessment is required to be increased or decreased is a question that relates directly and proximately to the value of goods for purposes of assessment. The statutory definition of the said expression indicates that it has to be read to limit its application to cases where, for the purposes of assessment, questions arise directly and proximately as to the rate of duty or the value of the goods. 7. This Court in the case Swiss Glass Coat Equipments Ltd. (supra), while deciding the issue in relation to maintainability of the appeal, has held as under: 3. Mr. Dhaval Shah, learned advocate, appearing on behalf of the respondent, at the outset, submitted that the appeal preferred by the appellant is not maintainable. Learned advocate placed reliance upon a decision of the Andhra Pradesh High Court in the case of Commissioner of Central Excise, Hyderabad v. Shriram Refrigeration Industries [2009 (240) E.L.T. 201 (A.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. The Andhra Pradesh High Court in the case of Commissioner of Central Excise, Hyderabad v. Shriram Refrigeration Industries [supra] has held that the question as to whether any process undertaken by a manufacturer amounts to manufacture or not, and if the goods produced during that process are excisable or not would fall within the meaning of the expression `determination of rate of duty of excise or the value of the goods for the purposes of assessment of duty' used in section 35G[1] and section 35L[b] of the Act. We are in agreement with the view taken by the Andhra Pradesh High Court. In the circumstances, the present appeal which raises a question as to whether reglass 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. 6. The appeal is, therefore, dismissed as not maintainable. 8. Further, this Court in the case of Kich Industries (supra), while deciding the issue in relation to maintainability of appeal, has held as under: 2. Having noted the proposed substan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 35L of the Central Excise Act, 1944. Hence, Registry is directed to return all the Tax Appeals to the appellant to present it before the competent Court having jurisdiction. Accordingly, all the Tax Appeals stand disposed of so far as this Court is concerned. 9. Further, Madras High Court in the case of The Glovis India Private Limited (supra), while deciding the issue in relation to manufacture , has held as under: 12. Be that as it may, since we are dealing only with the preliminary objection raised by the Assessee before us, we should naturally not express any opinion on the questions of law sought to be raised by the Revenue in the present appeals and that should be left to be raised at the appropriate forum, which, in our opinion, will be an appeal under Section 35L of the Act before the Hon ble Supreme Court of India. 13. Therefore, as indicated above, since the question of excitability under Central Excise Act and dutiability under the Customs Act are the basic questions at the root of the matter, before deciding the questions of rate of duty and valuation of goods, which as per expanded scope of 35L of the Act, should naturally now lie before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which would be applicable to a class or category of assessees as a whole. The question is purely inter-se between the parties and is required to be adjudicated upon the facts available. In our opinion, the issue in above referred two decisions, relied by appellant, was in relation to whether the goods are covered under the Notification or not and is there breach of conditions by the assessee, which have been imposed by the Notification for getting exemption? In our opinion, the said are not the facts in the present case. 12. In our opinion, the dispute in the present appeal, is in relation to whether the assessee was covered by the exemption notification, where the exemption notification was related directly and proximately to rate of duty applicable and, therefore as held by the Hon ble Supreme Court in case of Navin Chemicals MFG Trading Co. Ltd (supra) and this court in case of Swiss Glass Coat Equipments Ltd. (supra) and Kich Industries (supra), appeal on the question of law before the High Court would not be maintainable and an appeal under section 35 L of the Central Excise Act, 1944, would be maintainable before the Hon ble Supreme Court. 13. Resultantl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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