- (1.) The instant appeal filed by the revenue under Section 35-G of the Central Excise Act, 1944 (hereinafter referred to as the Act') is directed against the order dated 27-9-2006 passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as the Tribunal') by raising the following substantial question of law :- Whether a plant which is entirely dependent on another unit for its operation having common power connection, common boiler, common storage for raw material, common water treatment plant, common entrance and sharing common financial status and when the capital goods were purchased in the name of the old unit who had also availed credit of duty paid thereon, can be treated as an independent factory for allowing the benefit of the exemption notification Nos. 6/2000-C.E., dated 1-3-2000, 3/2001-C.E., dated 1-3-2001 and 6/2002-C.E. dated 1-3-2002 ?
(2.) After notice of motion, Mr. Vishwanath Shukla, Advocate, puts in appearance on behalf of the respondent and at the very outset raised the objection about the maintainability of this appeal filed by the appellant in this Court under Section 35-G of the Act. Learned counsel submitted that in this appeal the appellant is raising the issue that the respondent-assessee was not entitled for the benefit of the exemption granted vide Notification Nos. 6/2000- C.E., dated 1-3-2000, 3/2001-C.E., dated 1-3-2001 and 6/2002-C.E. dated 1-3-2002 and the said benefit has been wrongly granted to the assessee by the Tribunal while observing that after approval of the demerger scheme by this Court M/s. B.K. Kraft Ltd. applied for separate registration under the Factories Act, therefore, the two entities are separate and are entitled for the benefit of the notifications separately if the conditions of notifications are fulfilled. While referring to Section 35-G of the Act which provides for an appeal to the High Court, learned counsel submitted that an appeal shall lie to the High Court, from every order passed in appeal by the 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. Learned counsel submits that no appeal lies to the High Court against the order of the Tribunal when the impugned order relating to the determination of any question having a relation to the rate of duty of excise. He further submits that granting or not to granting the benefit of certain notification is a dispute pertaining to the rate of excise duty. If the benefit is granted under the exemption notification, then less duty will be chargeable, if not, then higher duty will be chargeable. Therefore, in nutshell the dispute in granting or not to granting the benefit of exemption notification is a determination of the question relating to the rate of duty of excise. He submits that in such cases the appeal lies to the Hon'ble Supreme Court under Section 35-L of the Act which provides that "an appeal shall lie to the Supreme Court from (b) any order passed by the Appellate Tribunal 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." In support of his contention, learned counsel for the respondent relied upon the decision of the Supreme Court in Navin Chemicals Mfg. & Trading Co. Ltd . V/s. Collector of Customs, 1993 68 ELT 3(S.C.) wherein the Supreme Court while interpreting the Explanation to sub-section (5) of Section 129D of Customs Act, 1962 has observed that the expression determination of any question having a relation to the rate of duty or the value of goods', includes a dispute as to the classification of goods and as to whether they are covered by an exemption notification relates directly and proximately to the value of goods for purposes of assessment. Therefore, the learned counsel submits that in the instant case also the dispute which the appellant is raising in this appeal, is that the case of the respondent is not covered by exemption and the same was wrongly granted to it, therefore, the same is covered by the expression i.e. "order relating to the determination of any question having a relation to the rate of duty of excise."
(3.) On the other hand, learned counsel for the appellant submitted that the appellant is questioning the granting of benefit of exemption to the assessee under the Notification Nos. 6/2000-C.E., dated 1-3-2000, 3/2001-C.E., dated 1-3-2001 and 6/2002-C.E., dated 1-3-2002, but that itself does not amount that the question involved in this appeal is with regard to the determination of the rate of excise duty. However, learned counsel for the appellant could not cite any contrary judgment to the judgment cited by the counsel for the respondent.;