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1987 (12) TMI 185

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..... relating to Appeal No. E/72/85-Cal). 2. It is the applicants' contention that the following questions of law arise out of the order of the Appellate Tribunal : (1) Whether in the facts and circumstances of the applicants' case the Hon'ble Tribunal was correct in law in holding that the term "undue hardship" occurring in proviso to Section 35F of the Central Excises and Salt Act, l944 would mean only financial hardship or immediate pecuniary hardship? Will liquidity of the firm be the only factor in determining the undue hardship? (2) Whether in the facts and circumstances of the applicants' case the Hon'ble Tribunal was correct in law in holding that existence of a prima facie case or the balance of convenience are not the factors to be .....

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..... ean and include all the facts and circumstances which cause hardship, has been accepted. 4. In view of the above position, it is apparent that the Tribunal had committed an error in passing the order in Stay Application No. 45/85-Cal and therefore, they would now pray that in terms of Section 35C(2) of the Central Excises and Salt Act, 1944, the Tribunal may amend its own order and rectify the mistake. 5. The Bench observed that we were at present hearing the Reference Application filed in terms of Section 35G(1) and not an application for rectification of mistakes which was required to be filed under Section 35C(2). 6. The learned Counsel thereupon stated that if their prayer for rectification of mistakes is not accepted, then the Refer .....

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..... a question of correct interpretation of Section 35F and it has been held in the case of G. Venkataswami Naidu & Co. v. Commissioner of Income Tax [35-ITR-594 (S.C.] that "if a point raised on reference relates to the construction of a document of title or to the interpretation of the relevant provisions of the statute, it is a pure question of law." The same view was taken in the case of Commissioner of Income Tax, U.P. v. A. Tellery and Sons Pvt. Ltd. [63-ITR-288 (S.C.)]. Again in the case of Commercial Taxes Officer, Anti-Evasion, Jaipur v. Spencer and Co. Ltd. [62-STC-210 (Raj.)], it has been laid down as to what is a question of law arising out of the order. In the instant case, the issue of correct construction of the statute had been .....

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..... ned S.D.R., stated that rectification or recall of the Stay Order was a different matter. The application under consideration is a Reference Application and not a Rectification Application. A Reference Application is required to be filed in terms of Section 35G. This section refers to order passed under Section 35C and the order under Section 35C is a final order and therefore, only such an order was subject to reference to High Court in terms of Section 35G. 16. In other words, the Tribunal has to first pass a final order before request for reference could be made in terms of aforesaid section. Furthermore, in the case of interlocutory orders the rights of the parties are not affected and therefore, no reference is called for. 17. In was .....

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..... S.S. Khanna v. Brig. F.J. Dhillon (AIR-1964-S.C.-497) is distinguishable inasmuch as in the said case, it was held by the Hon'ble Supreme Court that a decision having a direct bearing on the rights of F.J. Dhillon to a decree for recovery of the loans was involved. It is in this context, that the Hon'ble Supreme Court had held that the expression 'Case' includes 'a part of the case' and the order of the Subordinate Judge must be considered as a case which has been decided. 24. In the case before this Bench the Ad Interim Order passed in question does not determine the rights of the parties and has no direct bearing on the same. Therefore, the situation is different. 25. Furthermore, once there are specific provisions in this Central Excis .....

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