1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CENTRAL EXCISE APPEAL NO. 22 OF 2007 (M/s. Varada Agro Processors Limited vs. Union of India & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : S.A. BOBDE & F.M. REIS, JJ. APRIL 21, 2009. Heard Shri Parchure, learned counsel for the appellant and Shri Mishra, learned counsel for respondents No. 1 & 3. Shri Mishra, learned counsel raises a preliminary objection to the tenability of the appeal. The appeal is before us in respect of an order relating to the determination of a question having a relation to the rate of duty or excise or to the value of goods for the purposes of assessment as contemplated by Section 35G of the Central Excise Act, 1944. Section 35G provides that an appeal for such an order shall not lie to the High Court. It reads as follows: “35G. Appeal to High Court – (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (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 2 goods for the purposes of assessment), if the High court is satisfied that the case involves a substantial question of law. (2) The Commissioner of Central Excise or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub- section shall be - (a) filed within one hundred and eighty days from the date on which the order appealed against is received by the Commissioner of Central Excise or the other party; (b) accompanied by a fee of two hundred rupees where such appeal is filed by the other party; (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub- section shall be deemed to take away or abridge 3 the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. (5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. (6) The High Court may determine any issue which - (a) has not been determined by the Appellate Tribunal; or (b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub- section (1). (7) When an appeal has been filed before the High Court, it shall be heard by a bench of not less than two Judges of the High Court, and shall be decided in accordance with the opinion of such Judges or of the majority, if any, of such Judges. (8) Where there is no such majority, the Judges shall state the point of law upon which they differ and the case shall, then, be heard upon that point only by one or more of the other Judges of the High Court and such point shall be 4 decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it. (9) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section]. The dispute in present appeal relates to the classification of the appellant’s product i.e. whether it is liable to be classified under 20.01 of CETA 1985 or 08.10 of CETA 1985. This has a direct bearing on the rate of duty. In Navin Chemicals Manufacturing & Trading Company Limited vs. Collector, reported in 1993 (68) E.L.T. 3 (SC) the Supreme Court observed as follows : “It will be seen that sub-section (5) uses the said expression ‘determination of any question having a relation to the rate of duty or to the value of goods for the purposes of assessment’ and the explanation thereto provides a definition of it for the purposes of this sub-section. The explanation says that the expression includes the determination of a question relating to the rate of duty; to the valuation of goods for the purposes of assessment; to the classification of goods under the Tariff and whether or not they are covered by an exemption notification; and whether the value of 5 goods for purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for. Although this Explanation expressly confines the definition of the said expression to sub-section (5) of Section 129D, it is proper that the said expression used in the other parts of the said Act should be interpreted similarly. The statutory definition accords with the meaning we have given to the said expression above. Questions relating to the rate of duty and to the value of goods for purposes of assessment are questions that squarely fall within the meaning of said expression. 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. Whether the value of goods for purposes of assessment is required to be increased or decreased is a question that relates directly and proximately to the value of goods for purposes of assessment. The statutory definition of the said expression indicates that it has to be read to limit its application to cases where, for the purposes of assessment, questions arise directly and proximately as to the rate of duty or the value of the goods. This view was also followed by this Court in 6 Sterlite Optical Technologies Ltd. vs. Commissioner of Central Excise, Aurangabad, reported at 2007 (213) E.L.T. 658 (Bom.). In these circumstances, we find that the appeal is not tenable under Section 35G of the Act. We order accordingly. JUDGE JUDGE *GS.