1987 (4) TMI 243 - AT - Central Excise

Summary

Issues:
- Interpretation of specific provisions of Rule 173-G(2)(vii) over general provisions of Rule 11 of the Central Excise Rules, 1944.
- Whether the Tribunal should refer a point of law to the High Court based on the Collector's application.

Analysis:
1. The Collector of Central Excise, Bombay I filed an application under Section 35-G of the Central Excises and Salt Act, 1944, seeking the Tribunal to refer a point of law to the Hon'ble Bombay High Court arising from a previous order. The main issue was whether the specific provisions of Rule 173-G(2)(vii) should have been used by the assessee, M/s. Parle Products Ltd., instead of the general provisions of Rule 11. The Collector contended that the Tribunal's interpretation allowing the assessee to choose either remedy was incorrect, citing the Calcutta High Court's decision for support.

2. The Departmental Representative argued that Rule 11 had been deleted and, therefore, a ruling from the High Court would not impact its implementation. He emphasized that the remedies under Rule 173-G and Rule 11 were not mutually exclusive, and it was the assessee's choice on which remedy to pursue. Additionally, he highlighted that the substantive act's provisions would prevail over the Rules, making the reference unnecessary. The Respondent's Advocate contended that no question of law arose from the Tribunal's decision requiring a High Court reference.

3. The Tribunal analyzed the arguments and concluded that the point of law for reference should stem from its order and pertain to a legal issue. It clarified that Rule 173-G(2) and Rule 11 were separate procedural rules for duty relief, with different mechanisms for availing refunds. The Tribunal found no requirement for the provisions of Rule 173-G(2) to be read into Rule 11, as each rule served distinct purposes. It determined that the specific remedy did not apply as the assessee did not take credit without giving the necessary intimation, and the repeal of Rule 11 further diminished the need for a High Court reference. Consequently, the Tribunal rejected the Collector's application for a reference.

This detailed analysis of the judgment provides a comprehensive overview of the legal issues involved and the Tribunal's reasoning behind rejecting the application for a High Court reference.