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TMI Blog1985 (3) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The facts giving rise to this Reference Application are that three refund claims of Indian Oil Corporation amounting to ₹ 12,196.47, 3,753.26 and 11,104.86 were admitted by ths Central Excise Authorities and those were paid vide cheques dated 27-7-1977, 31-3-1977 and 28-2-1977 respectively. Subsequently the excise authorities issued three show cause notices No. C. No. V/9/18/2/76/1285 dated 6-2-1978, C. No. V/9/2/141/73/1281 dated 6-2-1978 and C.No. V.9/2/32/75/1283 dated 6-2-1978 demanding back a sum of ₹ 3,998.38, 1216.12 and 3321.99 respectively from M/s. Indian Oil Corporation on the ground that the refunds ware erroneous and that the excess amounts be surrendered to the Department. The Assistant Collector confirmed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is only the Collector of Central Excise or the other party who are entitled to file Reference Application with respect to an order (not being an order relating among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment). According to Shri Venkataraman, this Reference Application has not been filed by the Collector but has been filed by the Assistant Collector, who cannot be said to be a person entitled to move this Reference Application. He pointed out that unlike authorisation of power given to the Collector of Central Excise under Section 35-B (2) of the Central Excises and Salt Act, 1944, the Collector has not been empowered to delegate hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal specially constituted for the purpose of deciding the matter relating to the classification involving the rate of duty and the valuation of the goods. Shri Venkataraman, also pointed out that all the Benches of the Tribunal have taken a unanimous view that though the point involved appears to be of limitation only but if it has arisen on account of determination of a question having a relation to the rate of duty, no reference lies to the High Court but an appeal would lie to the Supreme Court. As per this settled position, no reference application lies against this order passed by the Tribunal. 8. Shri A.S. Sunder Rajan, departmental representative submitted that the Assistant Collector, who has filed this Reference Application has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellate Tribunal to refer to the High Court any question of law arising out of such order. 12. Perusal of this Section shows that before a reference to the High Court, two conditions must be fulfilled. The application should be filed either by the Collector of Central Excise or by the other party within a period of 60 days from the date of the receipt and that that order should not be an order relating among other things to the determination of any question having a relation to the rate of duty of excise or to the value of the goods for the purposes of assessment. 13. In this case both these conditions have not been fulfilled. Neither the application has been filed by the Collector of Central Excise, nor this is an order which does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise and therefore, this application having not been filed by a proper person is not maintainable in law. 14. Besides this, perusal of the record shows that the refund amount as sanctioned to M/s. Indian Oil Corporation, Cochin, after a decision on a point having a relation to the determination of the rate of duty. The basis of the refund application is the determination of the rate of duty which has resulted in the refund application and the demand of erroneous refund made to the Indian Oil Corporation. It does not stand to reason as to how this order could not be treated as an order having relation, among other things, to the determination of any question having a relation to the rate of duty of excise. It is on account of this fact t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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