2003 (11) TMI 597 - HC - Central Excise

Summary

Issues:
1. Maintainability of reference sought under Section 35H of the Central Excise Act.
2. Whether the reference sought from the Tribunal involves a question of law.

Analysis:
1. The application filed under Section 35H of the Act sought a reference from the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) regarding the penalty under Rule 173Q of CER 1944 in relation to non-demanding of interest under Section 11AB. The Revenue argued that the question raised is purely a question of law and should be referred to the Court. However, the respondent contended that the application is not maintainable as an appeal to the Supreme Court is provided under Section 35L of the Act for matters related to the rate of duty of excise or the value of goods for assessment. Citing a Supreme Court decision, the respondent argued that the power of the High Court seeking a reference under Section 35H is excluded for such matters.

2. The Court considered whether the reference sought under Section 35H from CEGAT is maintainable and if the question raised involves a question of law. The Court noted that the language in Section 35H of the Act is identical to Section 130 of the Customs Act. Referring to the Supreme Court's interpretation of the Customs Act, the Court found that questions related to the rate of duty and value of goods for assessment fall within the scope of Section 130. The Court emphasized that disputes on classification, exemption notifications, and valuation directly impact the rate of duty and value of goods for assessment. Consequently, the Court concluded that the application seeking reference from the Tribunal should be rejected as not maintainable, as the questions raised did not involve a question of law.

3. In conclusion, the Court rejected the application as not maintainable but clarified that the rejection does not prevent the Revenue from filing an appeal against the CEGAT's order as provided under Section 35L of the Act. The Court's decision was based on the interpretation of the relevant provisions and the exclusion of High Court's power for certain matters under Section 35H, aligning with the Supreme Court's precedent regarding the scope of questions related to duty rates and goods valuation for assessment.