2004 (12) TMI 102 - HC - Central Excise

Summary

Issues:
1. Application for stay in connection with the reference under Section 35H of the Central Excise Act, 1944.
2. Jurisdiction of the High Court in relation to questions of law in reference under Section 35H.
3. Power of the High Court to grant stay in such cases.
4. Dismissal of the application for stay and the appellant's liberty to take further steps.
5. Treatment of the application as an informal paper book and expediting the hearing of the appeal.

Analysis:

1. The judgment pertains to an application for stay in connection with a reference under Section 35H of the Central Excise Act, 1944. The High Court clarifies that the reference under this provision involves questions of law that guide the Tribunal in deciding pending or disposed of appeals. The High Court's jurisdiction in such matters is advisory and does not involve deciding the appeal itself. It is established that the High Court's powers in advisory references do not include normal or inherent jurisdiction, except for ancillary powers in exigent situations.

2. The High Court emphasizes that Section 151 of the Civil Procedure Code (CPC) cannot be invoked while exercising jurisdiction over such references. The judgment cites previous cases and decisions from different High Courts and the Supreme Court to define the scope of the High Court's jurisdiction in reference matters. It is concluded that the High Court cannot exercise inherent jurisdiction in dealing with a reference, as consistently followed in various rulings.

3. Referring to a prior judgment, the High Court states that it cannot grant stay in this case, contrary to a decision by a learned Single Judge in a different matter. As a result, the application for stay is dismissed. However, the appellant is granted the liberty to pursue appropriate steps before any suitable forum as advised.

4. The judgment further directs that since the application includes all necessary documents, it is to be treated as an informal paper book, dispensing with the filing of a formal paper book and other formalities. The hearing of the appeal is ordered to be expedited for prompt resolution.

5. Finally, all parties are instructed to act based on a signed copy of the dictated order, and liberty to mention any relevant issues is granted. The judgment concludes by addressing the treatment of the application and expediting the appeal hearing process, ensuring efficient resolution of the matter at hand.