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Judgment
C.M. No. 18535/2014 in CEAC 96/2014; C.M. No. 18538/2014 in CEAC 97/2014; C.M. No. 18543/2014 in CEAC 98/2014 : Exemption allowed subject to all just exceptions.
Applications stand disposed of.
CEAC 96/2014 and C.M. Nos. 18533-18534/2014; CEAC 97/2014 and C.M. Nos. 18536-18537/2014; CEAC 98/2014 and C.M. Nos. 18541-18542/2014.
These appeals under Section 35G of the Central Excise Act, 1944 ("Act" in short) are preferred by the Revenue along with applications for condonation of delay. Before issuing notice on the applications for condonation of delay, we deem it appropriate to examine whether the present appeals would be maintainable under Section 35G of the Act as the issue adjudicated by the Order-In-Original and in the appellate proceedings relates to chargeability or levy of Excise duty i.e. whether the respondents assessees were engaged in manufacture and, therefore, Excise duty was leviable. The claim of the respondents assessees is that they were engaged in activity of cutting/slitting of jumbo paper rolls which were cleared as such or layered with carbon paper and this did not amount to manufacture and therefore no Excise duty was leviable. This contention, it is apparent from the order of the Tribunal, has been accepted. But the said contention when raised before the Adjudicating Authority, was rejected.
The proposed question of law mentioned in the grounds of appeal is as under:-
"Whether the process of cutting/slitting of jumbo paper rolls into smaller sizes in slitting machine, punching of paper on both sides with help of rotary machine, printing the name of the buyer and then placing sheet of carbon in between the two layers of paper (the final product emerged in market parlance known as "Computer Stationery") amount to manufacture as per Section 2(f) of the Central Excise Act 1944."
Thus, the issue raised in the present appeals relate to the question whether or not on the activity undertaken amounts to manufacture and accordingly, Excise duty was leviable/payable.
Under Section 35G of the Act, appeal before the High Court is maintainable against the order passed by the Customs, Excise and Service Tax Appellate Tribunal, only when it does not relate to determination of any question having a relation to the rate of duty of Excise or to the value of goods for the purpose of assessment. Appeals on the said two issues are maintainable before the Supreme Court under Section 35L of the Act. The question whether rate of duty would include the question of levy of duty was decided by this Court in National Basketball Association and NBA Properties Inc. v. Motorola Inc., 105 F. 3d. 841 (1997) and it was held that the issue whether or not the Excise duty is leviable would include and would partake character and is in the nature of the issue relating to rate of duty.
By Finance Act No. 2/2014, sub-section 2 has been inserted to Section 35L of the Act and the same reads as under:-
"(2) For the purposes of this Chapter, the determination of any question having a relation to the rate of duty shall include the determination of taxability or excisability of goods for the purpose of assessment."
Thus, the question having relation to rate of duty includes determination of taxability or excisability of goods for the purpose of assessment. The present appeals have been filed after the aforesaid insertion. In view of the aforesaid discussion, it has to be held that the present appeals are not maintainable before the High Court and are accordingly directed to be returned. The appellants, if so advised, can file appropriate proceedings/appeal in accordance with the law.