2010 (12) TMI 306 - HC - Central Excise

Question before high court - review petitioner - tribunal to refer question before HC - Held that It is apparent that in terms of Section 35-K when the High Court decide the question of law raised therein it shall deliver its judgement thereon and send a copy of the judgement to the Appellate Tribunal which shall then pass such orders as are necessary to dispose of the case in conformity with such judgement. It is therefore apparent that under Section 35-H this Court cannot decide any question and can only ask the appellate Tribunal to refer the question of law. Even after reference is made the High Court can only decide the question referred to it and thereafter has to send its judgement to the Tribunal who shall then decide the case in accordance with the judgement. - it is apparent that there is error apparent on the record of the case in as much as that this Court only has the jurisdiction to direct the Tribunal to refer the questions of law and could not have decided the same without such reference being made.

Summary

Issues:
Review petition to recall a judgment passed in Excise Reference, jurisdiction of the High Court to decide the case itself, error apparent in the judgment, maintainability of the review petition.

Analysis:
The petitioner filed a review petition seeking the recall of a judgment passed in an Excise Reference case. The grounds for the review included the absence of the petitioner during the judgment and the assertion that the High Court did not have jurisdiction to decide the case itself. The High Court had proceeded to decide both the questions of law and the main case without sending the matter back to the Tribunal for a decision on merits. The issue raised was whether the High Court had the authority to decide the case directly or was required to refer questions of law back to the Tribunal for a decision.

The relevant statutory provision in question was Section 35-H of the Central Excise Act, 1944, which outlined the procedure for applying to the High Court to direct the Appellate Tribunal to refer questions of law arising from its order. The section mandated that the High Court could only decide questions referred to it and then send its judgment back to the Tribunal for further action. Section 35-K specified that the High Court's decision on the case stated should be sent to the Tribunal for compliance. The High Court's role was limited to deciding the questions referred and not the entire case.

The Court noted that it had erred in deciding the case on merits without following the proper procedure of referring questions of law back to the Tribunal. The High Court acknowledged the mistake and allowed the review petition, recalling the judgment dated 10th April 2009. The Excise Reference was to be restored to its original status and listed for a hearing on a specified date. The objection regarding the maintainability of the review petition was overruled based on precedents establishing the High Court's jurisdiction to review its orders. The Court emphasized its inherent power to correct erroneous orders and maintain records accurately in accordance with the law.

In conclusion, the High Court rectified the error in deciding the case on merits without proper reference to the Tribunal. The judgment was recalled, and the Excise Reference was to be reheard following the correct procedural requirements. The High Court's jurisdiction to review its orders was affirmed, allowing for the correction of errors when necessary.