Gujarat High Court
Commissioner vs Jbf on 15 December, 2010
Author: Harsha Devani
Bench: Harsha Devani
Gujarat High Court Case Information System
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TAXAP/2205/2009 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 2205 of 2009
=========================================
COMMISSIONER
OF CENTRAL EXCISE - Appellant(s)
Versus
JBF
INDUSTRIES LIMITED - Opponent(s)
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Appearance
:
MR.VARUN
K.PATEL for
Appellant(s) : 1,
MR PARESH M DAVE for Opponent(s) :
1,
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CORAM
:
HONOURABLE
MS. JUSTICE HARSHA DEVANI
and
HONOURABLE
MR. JUSTICE H.B.ANTANI
Date
: 15/12/2010
ORAL
ORDER
(Per : HONOURABLE MS. JUSTICE HARSHA DEVANI)
1. In this appeal under section 35G of the Central Excise Act, 1944 (the Act), the Commissioner of Central Excise, Vapi has challenged order dated 25th February, 2009 made by the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal) proposing the following two questions:-
Whether in the facts and circumstances of the case the learned CESTAT was right in law in holding that National Calamity Contingent Duty (NCCD) is not leviable in respect of goods (Polyester Filament Yarn) clearance to 100% EOU?
Whether in the facts and circumstances of the case the learned CESTAT was right in law in setting aside the order of penalty imposed on the respondent assessee?
2. Vide order dated 14th October, 2010, this Court had issued notice in the matter, in response to which, Mr. Paresh Dave, learned advocate appears on behalf of the respondent.
3. At the outset, Mr. Paresh Dave, learned advocate has raised a preliminary objection to the very maintainability of the appeal, contending that the present case pertains to levy of National Calamity Contingent Duty (NCCD) which relates to a question relating to the rate of determination of duty of the goods and as such, in the light of the provisions of section 35G read with section 35L of the Act, the instant appeal would lie before the Supreme Court and not before this Court. Next it is submitted that the Tribunal while deciding in favour of the assessee has placed reliance upon its earlier decision in the case of M/s. Modern Petrofils Ltd., which has been accepted by the revenue and has not been challenged before the higher forum. In the circumstances, when on an identical issue the revenue has accepted the decision in the case of M/s. Modern Petrofils Ltd., it is not permissible for the revenue to discriminate between two assessees by accepting the decision in the case of one assessee and challenging the same in respect of another.
4. On the other hand, Mr. Varun Patel, learned Standing Counsel appearing on behalf of the appellant has submitted that the controversy involved in the present case is well within the jurisdiction of this Court and as such, the appeal is maintainable.
5. Briefly stated, the facts of the present case are that the assessee had not paid National Calamity Contingent Duty levied on Polyester Filament Yarn falling under Chapter 54 at the time of its clearances to 100% EOU. A show-cause notice came to be issued to the assessee which culminated into an order passed by the adjudicating authority directing recovery of NCCD amounting to Rs.6,73,288/-. Being aggrieved, the assessee carried the matter in appeal before the Commissioner (Appeals) who upheld the demand. The assessee succeeded in its appeal before the Tribunal.
6. A perusal of the order of the Commissioner (Appeals) indicates that the issue involved in the present case pertains to the applicability of Circular No.641/32/2002-CX dated 26th June, 2002 whereby goods exported under bond have been exempted under levy to NCCD.
7. The Supreme Court in the case of Navin Chemicals Mfg. & Trading Co. Ltd. vs. Collector of Customs, 1993 (68) E.L.T. 3 (S.C.) has held that a dispute as to classification of goods and as to whether or not they are covered by an exemption notification relates directly or 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 which relates directly and proximately to the value of goods for purposes of assessment.
8. The Punjab & Haryana High Court in the case of Commissioner of Central Excise, Panchkula vs. Special Machine, 2009 (242) E.L.T. 330 (P&H) has held that a dispute as to whether or not the assessee is covered by exemption notification, relates directly and proximately to the rate of duty applicable thereto for the purposes of assessment, and therefore the appeals would lie before the Supreme Court and not before the High Court.
9. The Bombay High Court in the case of Sterlite Optical Technologies Ltd. vs. Commissioner of Central Excise, Aurangabad, 2007 (213) E.L.T. 658 (Bom.) has held thus:
"22. The word "assessment" is used as meaning sometimes the computation of rate of duty, sometimes the assessable value of goods and sometimes the whole procedure laid down under the Act for imposing duty liability upon the manufacturer or importer. The word assessment is, thus, capable of bearing a very comprehensive meaning; in the context, it can comprehend the whole procedure for ascertaining and imposing duty liability. The word "levy"
was interpreted by the Supreme Court in the case of Asstt. Collector of Central Excise v. National Tobbaco of India Ltd., AIR 1972 SC 2563 as embracing within it the process of assessment and also imposition of tax. The term 'levy' appears to be wider in it's import than the term 'assessment'. It may include with "imposition" of tax as well as 'assessment'.
23. Considered on the above backdrops, the question of determination of status of the subject Unit will be one of the steps in the process of assessment. This exercise would be an exercise; which can be said to be part of the assessment. In this view of the matter, in our view, the dispute involved in the appeal and the substance thereof is: what should be rate of duty on the goods cleared to the Domestic Tarrif Area (D.T.A.). We have, thus, no hesitation to hold that the direct and proximate issues involved in the appeal for the purposes of assessment relate to the rate of duty applicable to the goods and the value thereof and the issue requiring determination of the status of the subject Unit would be one of the incidental issues. The contentions raised by the appellants, catalogued in Para (19) supra, also revolve around the rate of duty and valuation of goods for the purposes of assessment."
10. In the light of the aforesaid judicial pronouncements, it is apparent that the question as to the applicability of a notification or a circular which has a bearing on the determination of the rate of duty is a question which has a direct and proximate relationship to the rate of duty and to the value of goods for purposes of assessment. In 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.
11. For the foregoing reasons, without going into the merits of the case, the appeal is dismissed as not maintainable, with no order as to costs.
( Harsha Devani, J. ) ( H.B. Antani, J. ) hki Top