Gujarat High Court
Comm vs Pradeep on 3 February, 2011
Author: Harsha Devani
Bench: Harsha Devani
Gujarat High Court Case Information System
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TAXAP/2587/2009 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No.2587 of 2009
=========================================================
COMM.
CENTRAL EXCISE & CUSTOMS SURAT-II - Appellant(s)
Versus
PRADEEP
TARACHAND SHARMA DIRECTOR - Opponent(s)
=========================================================
Appearance
:
MR
GAURANG H BHATT for
Appellant(s) : 1,
None for Opponent(s) :
1,
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CORAM
:
HONOURABLE
MS.JUSTICE HARSHA DEVANI
and
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date : 03/02/2011
ORAL
ORDER
(Per : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. Leave to add the substantial question of law as proposed vide amendment dated 27.10.2010.
2. In this appeal under section 35G of the Central Excise Act, 1944 (the Act), the appellant-revenue has challenged order dated 1st June, 2009, made by the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad (the Tribunal) proposing the following questions:
"(a) Whether the deemed export made by the Notice to other 100% EOUs in the country in terms of para 9.20 of Exim policy 1997-2002 were to be considered for the purpose of para 9.9(a), 9.9(b) and 9.20 of Exim policy 1997-2002 after taking consideration the definition of "Export" as described under Section 2(18) of Customs Act, 1962 as the term "Export" is neither defined in Exim Policy 1997-2002 nor in Central Excise Act, 1944.
(b) If the Deemed Export cannot be treated as "Export" in terms of Notification No.2/95 CE dated 04.01.95 then, can M/s.Sanju Silk Mills be permitted to clear goods in DTA against the Deemed Export.
(c) Whether the Ld. Tribunal is justified in the eye of law, in the facts and the circumstances of the case, in setting aside the penalty of Rs.30,00,000/- (Rupees Thirty Lacs Only) on Shri Pradeep Tarachand Sharma, Director of M/s.Sanju Silk Mills Pvt. Ltd., under Rule-209A of the Central Excise Rules, 1944 (Now, Rule-26 of the Central Excise Rules, 2002)?
3. Heard Mr.Gaurang Bhatt, learned Standing Counsel appearing on behalf of the appellant.
4. A perusal of the show cause notice dated 09.07.2002 indicates that the issue involved in the present case is as to whether removals made by 100% EOU unit are eligible for concessional rate of duty under Notification No.2/95 CE dated 04.01.1995. The Supreme Court in the case of Navin Chemicals Mfg. & Trading Co. Ltd. v. Collector of Customs, 1993 (68) ELT 3 (S.C.), has held that 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. In the circumstances, the controversy involved in the present case, viz., as to whether or not the notification No.2/95 is applicable to the removal of goods by the respondent assessee relates directly and proximately to the rate of duty applicable thereto for the purposes of assessment.
5. Section 35 G of the Act which makes provision for "Appeal to High Court" lays down that an appeal shall lie to the High Court from every order of the Appellate Tribunal (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 the purposes of assessment if the High Court is satisfied that the case involves a substantial question of law. Section 35L of the Act which makes provision for "Appeal to Supreme Court"
interalia lays down that an appeal shall lie to the Supreme Court from 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 the value of goods for the purposes of assessment. In the light of the aforesaid provisions, the controversy involved in the present case having a direct relation to the determination of any question having a relation to the rate of duty of excise or the value of goods for the purposes of assessment, appeal against the impugned order will lie before the Supreme Court and the High Court has no jurisdiction to entertain and decide the same.
6. In the aforesaid premises, without entering into the merits of the case, the appeal is dismissed as not being maintainable before this Court.
Sd/-
[HARSHA DEVANI, J] Sd/-
[ H.B.ANTANI, J ] *** Bhavesh* Top