1985 (3) TMI 263 - AT - Central Excise

Summary

Issues:
1. Validity of Reference Application filed by Assistant Collector
2. Whether the order relates to the determination of any question having a relation to the rate of duty of excise

Analysis:

1. Validity of Reference Application filed by Assistant Collector:
The Assistant Collector filed a Reference Application against an order relating to refund claims of M/s. Indian Oil Corporation. The respondent contested the application, arguing that only the Collector of Central Excise or the other party can file such an application. The respondent highlighted that the Assistant Collector lacks the authority to file the Reference Application under Section 35G of the Central Excises and Salt Act, 1944. The respondent pointed out that the power to file Reference Applications is specifically granted to the Collector and cannot be delegated to a junior officer. The Tribunal agreed with the respondent, emphasizing that the Assistant Collector is not authorized to file such applications, rendering the Reference Application not maintainable.

2. Determination of a question relating to the rate of duty of excise:
The order in question was based on the point of limitation regarding refund claims, which the department argued did not relate to the rate of duty of excise. However, the Tribunal found that the order did indeed have a relation to the determination of the rate of duty, as the refund claims were based on the determination of the rate of duty, leading to the demand for erroneous refunds. The Tribunal noted that the matter was heard by a Special Bench specifically constituted for matters related to the rate of duty of excise. As a result, the Tribunal concluded that the order did pertain to a question having a relation to the rate of duty of excise, making it ineligible for reference to the High Court under Section 35G. The only recourse for the aggrieved party was deemed to be an appeal directly to the Supreme Court under the Central Excises and Salt Act, 1944.

In conclusion, the Reference Application filed by the Assistant Collector was deemed invalid due to lack of authority, and the order in question was found to relate to the determination of the rate of duty of excise, making it ineligible for reference to the High Court. The Tribunal rejected the Reference Application on these grounds.