COMMR. OF C. EX. Vs. UNIVERSAL FERRO AND ALLIED CHEM. LTD.

JUDGEMENT

(1.) This appeal has been preferred by the Commissioner of Central Excise, Nagpur under the provisions of Section 35(G) (1) of the Central Excise Act, 1944 (hereinafter referred to as .Act of 1944. for the sake of brevity) whereby the orders passed by the Customs, Excise & Service Tax Appellate Tribunal (hereinafter referred to as .CESTAT. for the sake of brevity) on 21.10.2005 in Appeal Nos.E/ 2691 to 2693/03 & E/1976/04 Mum, are impugned. A preliminary objection has been raised by the respondents to the maintainability of the appeal under the provisions of Section 35(G)(1) of the Act of 1944 before the High Court on the ground that the appeal would lie before the Hon'ble Supreme Court in view of the provisions of Section 35(L)(b) of the Act of 1944. According to the respondents, the order passed by the CESTAT and impugned in the present appeal relates, among other things, to the determination of a question having a relation to the rate of duty of the excise.

(2.) Few facts giving rise to the appeal and the present objection raised therein, are stated thus-----

(3.) It is submitted on behalf of the respondents that on a combined reading of provisions of Section 35(G) and 35(L) of the Act of 1944, it is clear that the jurisdiction to hear an appeal against an order of the Tribunal which relates, among other things, to the determination of any question having a relation to the rate of duty of Excise would lie before the Hon'ble Supreme Court and not before the High Court. It is submitted on behalf of the respondent no.1 that in the present case, the issue in question relates to the rate of duty i.e. 16% which is held to be payable by the respondent no.1 under Notification No.8/1997 as held by the CESTAT or whether it is payable in accordance with the provisions of Proviso to Section 3(1) of the Act of 1944. According to the counsel for the respondent no.1, there is also a dispute regarding the value on which the duty is paid. The counsel for the respondent no.1 took this Court to the memorandum of appeal filed by the appellant, in this appeal, to point out that the main issue which is sought to be agitated by the appellant in this case relates to the applicability or otherwise of the Notification No.8/1997 and the Proviso to Section 3(1) of the Act of 1944. It is submitted on behalf of the respondent no.1 that it is the case of the appellant that the benefit of Notification No.8/1997 would not be applicable to the goods cleared by the respondent no.1 to the Domestic Tariff Area and full duty under the proviso of Section 3(1) of the Act of 1944 is payable on the said goods.