1993 (7) TMI 166 - AT - Central Excise

Reference to High Court -Matter relating to refund claim with reference to a Notification affecting rate of duty

Summary

Issues:
1. Maintainability of the Reference Application filed by the Department.
2. Interpretation of Section 35G regarding Reference Application to the High Court.
3. Time-barred claim for refund under Notification No. 226/77.
4. Correction of factual error by the Assistant Collector.
5. Determination of questions of law vs. questions of fact.
6. Requirement for a reference to arise out of the Tribunal's order.
7. Precedents set by Supreme Court and High Court judgments affecting the reference.

Analysis:

The judgment by the Appellate Tribunal CEGAT, New Delhi revolves around the maintainability of a Reference Application filed by the Department concerning an order passed by a Special Bench. The Tribunal observed that a Reference Application to the High Court does not lie against orders of a Special Bench, as per Section 35G. However, in this case, the Reference Application was initially rejected as time-barred by the Assistant Collector but allowed by the Collector (Appeals), leading to an appeal to the Tribunal.

The Department argued that the questions raised in the Reference Application pertained to the interpretation of Section 11B, not related to classification, valuation, or rate of duty. Citing Supreme Court judgments, they contended that the matter should be referred to the High Court. The respondents, though absent, submitted a cross-objection regarding a time-barred refund claim under Notification No. 226/77, which was approved belatedly by the excise authorities.

The Tribunal considered both sides' submissions and noted that while the impugned order dealt with a time-bar issue, the refund claim was based on a notification affecting the rate of duty. As the case was heard by a Special Bench dealing with classification and rate of duty matters, the Reference Application was deemed not maintainable. The Tribunal emphasized that a reference must involve a question of law, not just a question of fact, and no question of law arose from the Tribunal's order.

Additionally, the Tribunal highlighted that if an issue has been settled by the Supreme Court or High Court, no reference lies under Section 35G. Referring to judgments and precedents, the Tribunal concluded that no reference was permissible in the present case, leading to the dismissal of the application. The judgment underscores the importance of the nature of questions raised, the jurisdiction of different benches, and the precedents set by higher courts in determining the maintainability of a Reference Application.