2005 (3) TMI 166 - HC - Central Excise

Summary

Issues:
Application under Section 35(G)(3) of Central Excise Act for making a reference to the High Court by the Tribunal.

Analysis:
The case involved an application under Section 35(G)(3) of the Central Excise Act made by the Commissioner Central Excise following the dismissal of their reference application by the Tribunal. The Tribunal rejected the application, stating that no question of law arose from their order. However, the petitioner argued that a specific question regarding the eligibility of a multilayer co-extruded film for benefit under Rule 57-A as an input should be referred to the High Court. The petitioner contended that this question was a question of law and should have been referred to the High Court by the Tribunal. The Tribunal's decision was challenged on the grounds that the question proposed was not conclusively decided by any higher court and remained debatable, warranting a reference to the High Court for judicial debate.

The counsel for the assessee opposed the petitioner's argument, claiming that the question was not a question of law and had already been addressed in previous court decisions. They cited various cases to support their stance, arguing that the issue raised by the petitioner had already been settled by these decisions and did not require further reference. However, after hearing both parties and examining the case record, the High Court concluded that the application deserved to be allowed. The Court held that the question proposed by the petitioner was indeed a question of law and should have been referred to the High Court by the Tribunal for consideration.

The High Court emphasized that the question's status as a debatable legal issue, not conclusively decided by higher courts, warranted its referral for judicial review. The Court clarified that the Tribunal's decision was binding on itself but not on the High Court, and a reference could not be refused solely based on the Tribunal's decision. The High Court highlighted that while previous court decisions could serve as guidelines for determining the question on its merits, they did not directly address the specific question proposed by the petitioner. Therefore, the High Court directed the Tribunal to refer the question regarding the eligibility of the multilayer co-extruded film under Rule 57-A to the High Court for further consideration within a specified timeframe.