1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CENTRAL EXCISE APPEAL No. 19/2006 ( The Commissioner of Central Excise .vrs. M/s. Railis India Ltd. And another ) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI AND F.M. REIS, JJ. DATED : AUGUST 4, 2009. Heard Shri F.T. Mirza, learned Counsel for the appellant and Shri M.M. Sudame, learned Counsel for respondent no.2. The Department has filed this appeal raising the following substantial questions of law : (I) The Apex Court judgment in case of M/s. Ujagar Prints .vrs. Union of India (1988 [38] ELT 535 [SC]), is applicable in the instant case despite the fact that only illusion of job-work and transfer of goods is created by both the Respondents to avoid legitimate payment of duty as per Rule 7 of the Central Excise Valuation Rules, 2000 and the arrangement was not on principal to principal basis. (II)There has been no contravention of Rule 4 and 6 of the Rules by Respondent no.1 and that the proper excise duty had discharged by him. (III)Penalty is not imposable on respondent no.1 under 2 Rule 25, ibid and also on respondent no.2 under Rule 26 abid. Contention of Shri Mirza, the learned Counsel for the appellant is that earlier the valuation of Excise Duty was more, but then by entering into bogus arrangements, the ex- factory price of the job workers is being utilized for payment of excise duty. He contends that the rate used by the C & F agent needs to be treated as valuation of goods for the purpose of calculation of excise duty. Shri Sudame, learned Counsel appearing for the respondent, contends that in view of the express language of Section 35 (G) and 35 (L), the question relating to determination of the rate of duty of excise or as to the valuation of goods for the purpose of duty is only to be raised before the Hon’ble Supreme Court. He has relied upon the judgment of Division Bench of this Court reported at 2007 (213) E.L.T. 658 (Bom) (Sterlite Optical Technologies Ltd. .vrs. Commr. Of C. Ex. Aurangabad), wherein the contention that was issue of valuation was direct and proximate issue. However, in paragraph no.19, the Division Bench after noticing the objections which were raised before it, noted the judgment of Hon’ble Apex Court in the case of Navin Chemicals Mfg. .vrs. Collector (1993 [68] E.L.T. 3 SC) and found that such question is also required to be raised before the Hon’ble Apex Court. Here in grounds of appeal filed before us in paragraph no.19.12, the appellants have specifically stated that the dispute involved is in respect of valuation of goods only and there was no dispute about the control on production at all. The observations by the Commissioner in 3 the original order and the observations in paragraph no.1.1 of the impugned order of CESTAT, clearly show that dispute was in relation to the valuation of Pesticides Marshal 25E and Bestox 10EC, manufactured by the appellant. It is therefore, clear that the questions sought to be raised before this Court are misplaced and need to be raised before the Hon’ble Supreme Court. Appeal is therefore, not maintainable, hence the same is rejected. However, the appellants are at liberty to approach the Hon’ble Apex Court in the matter in accordance with the law. JUDGE JUDGE Rgd.