1 . . . . 112 2010 C E A No of IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ----- C.E.A. No. 112 of 2010 Date of decision: 19.8.2010 M/s. Mahavir Dyeing and Finishing Industries through its partner, Atul Jain --- Petitioner Versus Commissioner of Central Excise Ludhiana --- Respondent --- CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTAL HON’BLE MR. JUSTICE M.S. SULLAR --- PRESENT: Mr. Jagmohan Bansal, Advocate for the appellant. --- AJAY KUMAR MITTAL, J. 2 . . . . 112 2010 C E A No of This appeal filed under Section 35G of the Central Excise Act, 1944 (for short “the Act”) is at the instance of the assessee. The challenge in this appeal is to the order dated 11/12.11.2009 (Annexure A-2) passed by the Customs Excise and Service Tax Appellate Tribunal, New Delhi (for short “the Tribunal”) whereby the order dated 5.1.2004 passed by the adjudicating authority, i.e. the Assistant Commissioner, Central Excise Division-I, Ludhiana was upheld so far as it denied the claim of benefit under the notification No.14/2002-CE dated 1.3.2002.. The appellant is a manufacturer of ‘Man-made Processed Knitted Fabrics’ and it is manufacturing processed fabrics from Grey Fabrics. The appellant is, therefore, liable to pay duty in terms of the provisions of the Act and the rules framed there- under. As per appellant’s own showing, the process of manufacturing fabrics done by it amounts to manufacture and the tariff rate duty payable on processed fabric is 16% as basic excise duty and at the rate of 8% as additional excise duty. The Government issued a notification No. 11/2201-CE dated 1.3.2001 exempting the processed fabric from duty in excess of 16%, or in other words, the maximum tariff duty which an assessee was liable to pay under the provisions of the Act was 16% only in terms of the aforesaid notification. Thereafter the Government with a view to further promoting the textile industry reduced the effective rate of duty from 16% to 12% by issuing another notification No. 14/2002 dated 1.3.2002. A demand was raised by the respondent against the appellant by issuing a show cause notice averring that the benefit of 3 . . . . 112 2010 C E A No of the Exemption Notification No.14/2002-CE was not admissible to it because the processed fabric was manufactured from grey fabric which was exempted from payment of duty in terms of Sr. No.14 of the Table annexed to the Notification and, therefore, the processed fabric was not entitled to benefit of the notification No.14/2002. The submission made on behalf of the appellant did not find favour with the respondent and consequently, demand of duty was confirmed and penalty was imposed on the appellant vide order-in-original, dated 5.1.2004, Annexure A-1. The appellant preferred appeal before the Tribunal which was partly accepted. At the hearing, learned counsel for the appellant fairly submitted that in a similar matter i.e. C.E.A. No. 10 of 2010 where also the question for determination by this Court was, whether the assessee was entitled to the benefit of Exemption Notification No.14/2002-CE dated 1.3.2002 had held that such appeal was not maintainable. The counsel appearing for the Revenue in that matter had raised a preliminary objection that the question whether the assessee is covered by the Exemption Notification or not, relates to the rate of duty and, for determination of such question, appeal would not lie to the High Court under Section 35G of the Act and the only remedy with the assessee was to file appeal before the Supreme Court under Section 35L of the Act. The counsel in support of his plea had relied upon two judgments of this Court in Commissioner of Central Excise Ludhiana vs. A.S.T. Paper Mills Ltd. 2008 (227) ELT 189 (P&H) and Commissioner of Central Excise, Panchkula vs. Special Machine, 2009(242) ELT 330 (P&H). This Court accepted the submission made on behalf of 4 . . . . 112 2010 C E A No of the Revenue and accordingly, vide order dated 22.3.2010 held the appeal to this Court to be not maintainable and that the only remedy available to the assessee was to file appeal before the Supreme Court under Clause (b) of Section 35L of the Act. The appeal was, thus, ordered to be returned for being presented to the Court of competent jurisdiction. After hearing learned counsel for the appellant and in view of the order passed in C.E.A. No.10 of 2010, the instant appeal is not maintainable. The appeal is, therefore, ordered to be returned to the appellant for being presented before the Court of competent jurisdiction. (AJAY KUMAR MITTAL) JUDGE (MOHINDER SINGH SULLAR) August 19, 2010 JUDGE *rkmalik*