1. This Tax Appeal under Section 35G of the Central Excise Act, 1944 (for short the “Act 1944”) is at the instance of the Revenue and is directed against the order dated 02.01.2019 passed by the Customs, Excise & Service Tax Appellate Tribunal, West Zone Bench at Ahmedabad (for short ‘CESTAT’) in Appeal No.E/12885/2013DB.

2. The following issues have been raised for the consideration of this Court.

“7A). Whether the appellant has rightly claimed benefit of Exemption Notification No. 39/2001-CE dated 31.07.2001 (as Amended from time to time) in respect of goods that said to have manufactured on such plant and machineries that were installed after cut off date 31.12.2005?

b. Whether the expansion of the unit after cut-off date 31.12.2005 does restrict the appellant to avail the benefit of Exemption Notification No.39/2001-CE?

C. Whether the larger period of limitation is invokable in the facts of the present case?”

3. Thus, having regard to the issues referred to above, this appeal before this Court would not be maintainable. The appeal would lie before the Supreme Court.

4. In the aforesaid context, we may refer to the order passed by this Court dated 26.09.2019 in the Tax Appeal No.666 of 2019 and allied appeals:

“1. All these appeals arise out of a common order No. A/10108-10114/ 2019 dated 17.1.2019 passed by the Customs, Excise & Service Tax Appellate Tribunal, Western Zonal Bench, Ahmedabad.

2. In all these appeals, the following common questions of law have been proposed by the appellant – Revenue:

“(i) Whether in the facts and circumstances of the present case, CESTAT is correct in dropping the demand of Central Excise Duty on the Finished Goods which had been manufactured and cleared without proper documents by the manufacturing unit viz. Jamnagar Mobile Plant/Unit of M/s Ratnamani Metal & Tubes Limited., and also without satisfying the condition of Notification No.108/95-CE dated 28.08.1995?

(ii) Whether in the facts and circumstances of the present case, the CESTAT is correct in allowing the benefit of exemption notification to the respondents, without fulfillment of the conditions mentioned in the respective exemption notification, against the law settled by the Hon’ble Apex Court?

(iii) Whether in the facts and circumstances of the present case, a factory established by a person and obtained separate registration under Central Excise provisions can be treated an extension of other unit of the same group which is also having a separate registration, despite of the fact that the factory premises are neither part of each other nor the process of final product is interlinked and nor the premise are segregated by public road, railway line, canal etc. and if was, then are the statutory provisions of law to be ignored on that ground?

(iv) Whether in the facts and circumstances of the present case, CESTAT is correct in holding that extended period cannot be invoked?

(v) Whether in the facts and circumstances of the present case, CESTAT is correct in dropping the entire demand against the Jamnagar Mobile Plant/Unit of M/s Ratnamani Metal & Tubes Limited., without assigning any cogent reason?

(vi) Whether in the facts and circumstances of the present case, CESTAT is justified in holding that no case for penalty and personal penalty is made out?”

3. Mr. Paresh M. Dave, learned advocate for respondents has submitted that the controversy involved in the present case relates to the determination of a question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment, therefore, in view of the provisions of section 35G read with section 35L of the Central Excise Act, 1944, the appeal would lie before the Supreme Court and not before this court. In support of such submission, the learned advocate placed reliance upon the decision of this court in the case of Commissioner of Central Excise vs. JBF Industries Ltd., 2011(264) ELT 162 (Guj.), wherein this court has held that the question as regards the applicability of a notification or a circular, which has a direct bearing on the rate of duty is a question which has a direct and proximate relationship to the rate of duty and value of goods for the purposes of assessment. It was submitted that the above decision would be squarely applicable to the facts of the present case and hence, these appeals are not maintainable before this court.

4. Mr. Nirzar Desai, Mr. Dhaval Vyas and Mr. Ankit Shah, learned senior standing counsels are not able to dispute the aforesaid position of law.

5. On a plain reading of the questions proposed by the appellant, it is evident that the applicability of Notification No.108/95-CE dated 28.8.1995 is subject matter of the appeal. Such notification has a direct bearing on the determination of the rate of duty for the purposes of assessment. Under the circumstances, in the light of the provisions of section 35G read with section 35L of the Central Excise Act, 1944, these appeals are not maintainable before this court.

6. In the aforesaid premises, the appeals are disposed of as not being maintainable before this court leaving it open for the appellant to file the same before the appropriate forum. The registry shall return the appeal papers to the learned counsel for the appellant after maintaining a copy thereof for their record.”

5. Mr. Shah, the learned standing counsel appearing for the Union of India is fair enough to point out that a review application was preferred by the Union of India against the order passed by the Coordinate Bench of this Court in Tax Appeal No.666 of 2019 and allied appeals referred to above and the same has been rejected today by the Coordinate Bench of this Court.

6. In view of the aforesaid, the present Tax Appeal is not maintainable before this Court and the only remedy available to the revenue is to file an appeal before the Supreme Court under Section 35L of the Act 1944.

With the above, the present appeal stands disposed of.