Jeet Enterprises vs Commissioner of Central Excise, Delhi-I

On the last date of hearing i.e. 15th September, 2014, the following order was passed:

"One of the issues raised and decided in the order in original relates to levy of duty. The order in original relies upon notification No. 1/93. Therefore, the original adjudication order has dealt with the issue of levy or imposition of duty. The question which will arise is; whether this appeal is maintainable before the High Court under Section 35G or appeal will be maintainable before the Supreme Court under Section 35L of the Central Excise Act, 1944.

Learned counsel for the appellant prays for some time to examine the said aspect."

The Order-in-Original in the three cases are identical, though in the case of Kandhari Separator Industries and Jeet Enterprises, the Order-in-Original was passed on 17th November, 2000 and in case of Hi Tech Electrical Industries, the Order-in-Original was passed on 13th November, 2000.

One of the issues raised and decided by the Orders-in-Original, was whether the three appellants before us, were liable to pay Excise Duty. As per the findings recorded in the Orders-in-Original, the three appellants were liable to pay Excise Duty because they were manufacturing rechargeable electric accumulators under Chapter Heading 85.07 of the Central Excise Tariff Act for another concern Kandhari Radio Corporation. Thus, exemption notification would not be applicable.

Therefore, one of the issues, which was adjudicated and decided by the Orders-in-Original, relates to levy or chargeability of duty.

In terms and in view of issues decided by the Orders-in-Original, appeals against order of the Central Excise and Service Tax Appellate Tribunal would be maintainable before the Supreme Court under Section 35L of the Central Excise Act, 1944. The said legal issue/question was examined in detail in the case of National Basketball Association and NBA Properties Inc. v. Motorola Inc., 105 F. 3d. 841 (1997) . It has been held that the expression "rate of duty" would include "levy of duty". By Finance (No. 2) Act, 2014, amendments have been made to stipulate that "rate of duty" would include question of "levy of duty." The appeals are accordingly returned without answering the question, for want of jurisdiction. The appellants, if they deem appropriate, can file appeals under Section 35L of the Act, in accordance with law.