CEA/194/2010 of THE COMMISSIONER OF CENTRAL EXCISEANDCUSTOMS, VISAKHAPATNAM Vs M/S. HINDUSTAN ZINC LTD., VISAKHAPATNAM on 21 September 2026

1. THE COMMISSIONER OF CENTRAL EXCISEANDCUSTOMS, VISAKHAPATNAM, Visakhapatnam -I Comissionerate Port Area, Visakhapatnam 530 035 ...Petitioner AND

1. M/S HINDUSTAN ZINC LTD VISAKHAPATNAM, Zinc smelter (PO) Visakhapatnam 530 011 ...Respondent to set aside the Hon'ble CESTAT's Final Order No. 938 of 2009 dt. 11/05/2009 in Appeal No. Excise /575/07 IA NO: 1 OF 2010(CEAMP 172 OF 2010 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the operation of the Final Order No. 938 / 2009 dt. 11/05/2009 in Appeal Ex. No. 575/2007, pending disposal of the main Appeal in CEA No. _____ of 2010 in the interest of justice

IA NO: 2 OF 2010(CEAMP 284 OF 2010 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased post the above appeal "FOR BEING MENTIONED" for releasing the above matter from the batch of appeal which were decided on 20-8-2010 in CEA No. 95/2010 and batch or pass Counsel for the Petitioner: 9383/P S P SURESH KUMAR Counsel for the Respondent LAKSHMI KUMARAN SRIDHARAN The Court made the following order:

THE HON’BLE SRI JUSTICE BATTU DEVANAND & THE HONOURABLE SRI JUSTICE TUHIN KUMAR GEDELA

CENTRAL EXCISE APPEAL NO.194 OF 2010

JUDGMENT: (Per Hon’ble Sri Justice Battu Devanand)

The respondent is engaged in the manufacturing of Zinc Ingots and they have cleared Zinc Ingots to the Indian Navy availing exemption under Notification No.64/95-CE, dated 16.03.1995 after paying 8% of the invoice value as required under Rule 6(2) of Cenvat Credit Rules, 2002. The Zinc Ingots were used for manufacture of “Sacrificial Anodes” which in turn are used onboard ships to protect hull surface from corrosion. Since Zinc Ingots are not used directly as ship stores for consumption onboard the vessels to Indian Navy, a show cause notice was issued denying the benefit under Notification No.64/95-CE, dated 16.03.1995 and demanded to pay an amount of Rs.1,03,036/- as duty vide order in Original No.09/2005, dated 15.03.2005 by the Assistant Commissioner of Customs, Central Excise & Service Tax, Visakhapatnam.

Aggrieved by the said order, the respondent filed Appeal No.13/2006 (V-I)(D) CE before the Commissioner, Central Excise, Customs & Service Tax (Appeals), Visakhapatnam and the said appeal was allowed vide order, dated 15.03.2007. Against the said order, dated 15.03.2007, the Commissioner of Central Excise and Customs, Visakhapatnam, filed Appeal No.Excise/575/07 before the Customs, Excise and Service Tax Appellate

Tribunal, South Zonal Bench, Bangalore and the said appeal was dismissed vide order No.938/2009, dated 11.05.2009.

Aggrieved by the order, dated 11.05.2009, the present appeal was preferred.

The learned counsel for the respondent raised two preliminary objections to the maintainability of the appeal. The demanded duty, which is the subject matter of the present dispute is Rs.1,03,036/- on Zinc Ingots cleared.

The litigation policy of the Central Government stipulates that, Appeals should not be filed, in relation to any matter, where the value of the policy does not cross one crore. In the present case, most of the orders, in Appeals, relate to a value, which is below one crore and consequently, all the Appeals, where the value does not cross one crore, could have been withdrawn and could not have been filed by the appellant.

The learned counsel for the respondent would also contend that, Section 130 of the Customs Act, stipulates that, any Appeal against the Order of C.E.S.T.A.T., relating to the rate of tax or the value of the goods, for the purpose of calculating the tax, cannot be filed before the High Court and would have to be filed before the Hon’ble Supreme Court, Under Section 130- E of the Customs Act.

The learned Standing Counsel for the appellant would contend that though the amount in dispute is lower than the minimum monetary value, fixed under the litigation policy, the appeal would still be maintainable as the issue before this Court is of a recurring nature.

The learned Standing Counsel would further contend that the issue before this Court is whether exemption of customs duty, under the notification No.64/95 Central Excise, dated 16.03.1995. The learned Standing Counsel contends that a dispute as to whether import of certain products is exempted or not cannot be treated as a dispute relating to the rate of tax or the value of goods.

Having considered the submissions of the respective counsels and on careful perusal of the material available on record, it appears that the issue involved in the present appeal is no longer res integra. On several occasions, this Court has considered this issue. A Division Bench of this Court in CEA No.4 of 2025 had considered the question of whether a dispute relating to whether the goods are covered by the exemption notification can be raised only by way of an appeal under Section 130 of the Customs Act,1 962, before the Hon’ble Supreme Court and held by following the law laid down by the Hon’ble Supreme Court that an appeal on a question of exemption would be maintainable only before the Supreme Court and dismissed the Central Excise Appeal leaving it open to appellant to approach the Hon’ble Supreme Court by its judgment, dated 24.02.2026. Following the said judgment, a Coordinate Bench of this Court in the Commissioner of Customs, Vijayawada vs. M/s.Dalmia Cement Bharat Limited1, held that the present appeal, which raises a dispute regarding an exemption notification, is not maintainable before this Court and the same can be filed only before the Hon’ble Supreme Court of India.

1 2026(4) TMI 1066

By following the judgment of the Hon’ble Supreme Court and the judgments rendered by the Coordinate Bench of this Court, we hold that the present appeal, which raises a dispute regarding an exemption notification, is not maintainable before this Court and the same can be filed before the Hon’ble Supreme Court of India and as such, the present appeal is liable to be dismissed.

Accordingly, this Central Excise Appeal is dismissed.

It is made clear that it is open to the appellant to approach the Hon’ble Supreme Court of India.

There shall be no order as to costs.

As a sequel, miscellaneous petitions pending, if any, shall stand closed.

_________________________ JUSTICE BATTU DEVANAND

_____________________________ JUSTICE TUHIN KUMAR GEDELA Dated: 22.09.2026 PGR

THE HON’BLE SRI JUSTICE BATTU DEVANAND & THE HONOURABLE SRI JUSTICE TUHIN KUMAR GEDELA

CEA No.194 of 2010

Dt. 22.09.2026

PGR