Customs, Excise and Gold Tribunal - Mumbai
Collector Of Central Excise vs Parle Products Pvt. Ltd. on 9 April, 1987
Equivalent citations: 1988ECR227(TRI.-MUMBAI), 1988(33)ELT98(TRI-MUMBAI)
ORDER K.S. Dilipsinhji, Member (T)
1. This is an application filed by the Collector of Central Excise, Bombay-I in terms of Section 35-G of the Central Excises and Salt Act, 1944 requiring the Tribunal to refer to the Hon'ble Bombay High Court the point of law which is reported to have arisen out of the Tribunals decision in the Order No. 935/86 WRB dated 8th August, 1986 on the appeal No. 210/84 filed by the Collector of Central Excise, Bombay-I. Under this application, two points of law were framed by the Collector of Central Excise, Bombay-1. But during the course of the arguments on behalf of the Collector, the learned S.D.R. submitted that the only point, which arose out of the Tribunal's order and which required reference, would be reframed as follows :
Whether the specific provisions of Rule 173-G(2)(vii) should not have been availed of by the assessee M/s. Parle Products Ltd. in preference to the general provisions of Rule 11 of the Central Excise Rules, 1944 as in force at the relevant time.
2. In support of the revised point of law framed by the Learned Departmental Representative, he submitted that in the order No. 935/86 WRB dated 8th August, 1986 passed by the Tribunal, the Tribunal had come to the conclusion that M/s. Parle Products Ltd. abandoned their ground for claiming the refund as provided under Rule 173-G(2)(vii) in preference to the old Rule 11. In other words, the Tribunal had held that the assessee could select either of the two remedies available to him for seeking the relief. Shri Senthivel contended that this was not a correct interpreta- tion of law. The provisions of Rule 173-G(2)(vii) being specific they would over-ride the provisions of the General Rule 11 as in force at that time and since the Tribunal did not hold so in the order dated 8-8-1986, this was a point which arose out of the Tribunal's decision and in terms of Section 35-G it was mandatory on the part of the Tribunal to refer this point of law to the High Court. In support of his contention, Shri Senthivel relied on the Calcutta High Court's decision in the case of Manindra Nath Chatterjee 1977 TLR 175*. He submitted that as per this judgment, the Calcutta High Court had held that in case of demand of duty on warehoused goods like unmanufactured tobacco, the Department should have taken resort to the specific Rule 160 in preference to the General Rule 10 for demanding the duty. Shri Senthivel further contended that the wordings of Rule 11 were identical to the wordings of Section 11-B and therefore, a Ruling from the Hon'ble High Court would help the Department in administering the law correctly. Accordingly, he submitted that the point of law as revised, may be referred to the Hon'ble High Court for clarification.
3. On behalf of the Respondent, the learned Advocate contended that Rule 11 had been deleted. In these circumstances, there would be no practical effect of the Hon'ble High Court's Ruling on the implementa- tion of Rule 11. Therefore, there was no purpose in making the reference to the High Court as prayed by the Collector. Apart from this, the reme- dies available to the assessee under Rule 173-G and Rule 11 were not mutually exclusive and it was up to the assessee to choose whichever remedy he liked for seeking the relief. Apart from this, the provisions for seeking refund were now incorporated in Section 11-B of the Central Excises and Salt Act, 19H and it was a well settled law that the provisions of the substantive act would over-ride the provisions of the Rules. From this point of view, the learned Departmental Representative's argument that a clarification from the Hon'ble Bombay High Court would help the Department in correct administration of the Central Excise Rules, was not valid. Shri Thakur further submitted that the provisions of Rules 11 and 173-G(2) are independent of each other and there was no question of law which arose out of the Tribunal's decision dated 8-8-1986 which required reference to the High Court. He, therefore, prayed that the pplication should be rejected.
4. In reply, Shri Senthivel submitted that the assessee did not send the intimation for cancellation of the Gate Passes as required under Rule 173-G(2). These requirements were mandatory and these had not been denied. Since these mandatory requirements were not satisfied, the assessee was not eligible to the grant of refund. Hence this was a point of law which arose out of the Tribunal's decision and which required a reference to the Hon'ble High Court.
5. have examined the submissions made by both the sides. The point which requires reference to the High Court should arise out of the Tribunal's order and should be a point of law. In its order dated 8-8-1986, the Tribunal held that there were alternate remedies available to the assessee in seeking the relief as per Rule 173-G(2) and Rule 11. The Tribunal's decision did not imply that for the grant of refund under Rule 11, the requirements of Rule 173-G(2) should have been satisfied. In fact as held in the Tribunal's order both are separate procedural Rules for availing of relief of duty, the refund of which is due to the assessee. In the first remedy available under Rule 173-G(2), the assessee himself can avail of the relief by taking the credit after he has cancelled the Gate Pass, provided the intimation of the cancellation is given to the Central Excise Authorities. In the other case, the assessee has to make a claim to the Asstt. Collector for the refund of the amount involved. It has not been laid down anywhere that in case the mandatory requirements of sending intimation have not been followed, as enjoined by Rule 173-G(2), the assessee cannot claim refund in terms of Rule 11. In other words, the learned S.D.R. wanted that the provisions of Rule 173-G(2) should be read into the provisions of Rule 11. There is no warrant for such an interpretation. The further contention advanced on behalf of the Collector was that the specific remedy should preclude the general remedy. Examining this contention, it is seen that the specific remedy was_ not attracted as the assessee did not take credit of the amount involved. In case he had done so without giving an intimation, he would have been bound by the provisions of Rule 173-G(2). On the other hand, the assessee chose to apply for refund in terms of old Rule 11. There is, therefore, no force in the Collector's contention that the provisions of these two rules should be read together in a situation like the one under consideration. This is also not a point which arose out of the Tribunal's order. It is further seen that the Rule 11 has now been repealed and a reference to the High Court would not serve any useful purpose as argued by the learned Advocate. In these circumstances, 1 find that the point of law, as framed on behalf of. the Collector, does not arise out of the Tribunal's order and the Reference Application is not justified. In these circumstances, 1 reject the same.