Rajasthan High Court - Jaipur
Laxmi Udyog vs Commissioner Of Central Excise on 7 December, 2001
Equivalent citations: 2002(142)ELT27(RAJ), 2002(2)WLC371, 2003(1)WLN246
ORDER
1. The petitioner has moved this application under Section 35(G)(3) because his application of 31(G)(1) for referring the following question, stated to be a question of law to this court for its opinion has been rejected by the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi (CEGAT).
"Whether the parts of Power Driven Pumps falling under Heading No. 84.13 were entitled to the benefit of Exemption Notification No. 155/86, Dt. 1-3-86 read with Note 2(a) of Section XVI of Chapter 84 of CET-1986-87."
2. The Tribunal vide its order dated 18-8-2000 has rejected the application under Section 35(G)(1) by the following order :-
"In view of the wordings of Section 35G it is clear that no reference lies in the matter involving either of valuation or of rale of duty. Since the matter dealt with the issue with reference to the classification vis. a vis. rate of duty no reference lies. Precisely, this was the consistent view of the Tribunal in view of the wordings of Section 35G. Accordingly reference application filed by the party is dismissed."
3. Thus the application under 35(G)(1) was not dismissed on the ground that no question of law arises but was dismissed on the ground that the question of law arising out of the Tribunal's order cannot be made subject matter of the reference under Section 35(G) inasmuch as the question at issue having relation to rate of Duty of Excise, which in view of the clear provision of Section 35G reads as under :-
"Section 35G. Statement of case to High Court. - (1) The Collector of Central Excise or the other party may, within sixty days of the date upon which he is served with notice of an order under Section 35C (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), by application in the prescribed form, accompanied, where the application is made by the other party, by a fee of two hundred rupees, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order, and subject to the other provisions contained in this section, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer it to the High Court:
Provided that the Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period hereinbefore specified, allow it to be presented within a furlher period not exceeding thirty days.
(2) On receipt of notice that an application has been made under Sub-section (1), the person against whom such application has been made, may, notwithstanding that he may not have filed such an application, file, within forty-five days of the receipt of the notice, a memorandum of cross-objections verified in the prescribed manner against any part of the order in relation to which an application for reference has been made and such memorandum shall be disposed of by the Appellate Tribunal as if it were an application presented within the time specified in Sub-section (1).
(3) If, on an application made under Sub-section (1), the Appellate Tribunal refuses to state the case on the ground, that no question of law arises, the Collector of Central Excise, or, as the case may be, the other party may, within six months from the date on which he is served with notice of such refusal, apply to the High Court and the High Court may, if it is not satisfied with the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state the case and to refer it, and on receipt of any such requisition, the Appellate Tribunal shall state the case and refer it accordingly.
(4) Where in the exercise of its powers under Sub-section (3), the Appellate Tribunal refuses to state a case which it has been required by an applicant to state, the applicant may, within thirty days from the date on which he receives notice of such refusal, withdraw his application and, if he does so, the fee, if any, paid by him shall be refunded."
4. That an order under Section 35C, which is not an order relating amongst other things to the determination of any question having relation to the rate of Duty of Excise or to the value of goods for the purpose of assessment may be referred to the High Court if, such question is a question of law arising out of such order. The provision of Sub-section 3 of Section 35G is also inhibited by the same limitations with which the power of Tribunal under Section 35G(1) is inherited in the matter of making a reference.
5. The controversy which has been decided by the Tribunal and has been sought to be raised in the question suggested by the assessee surrounds the controversy at what rates the parts of power driven pumps are subjected to Excise Duty. The title of Chapter 84 in Section 16 of the Central Excise Tariff Act, 1985 reads as under :
"MACHINERY AND MECHANICAL APPLIANCES; ELECTRICAL EQUIPMENT; PARTS THEREOF; SOUND RECORDERS AND REPRODUCERS, TELEVISION IMAGES AND SOUND RECORDERS AND REPRODUCERS, AND PARTS AND ACCESSORIES OF SUCH ARTICLE."
6. The pumps for liquids, whether or not fitted with a measuring device; liquid elevators which included in Heading No. 84.13 and subheading No. 8413.00 under the aforesaid tariff item, the pump for liquids etc are to be subjected to excise duty @ 15%. At the time of assessment the petitioner claimed that what he is manufacturing are the parts or accessories of the pumps and therefore, they too fall within the same classification of 84.13, sub-heading 8413.00 of Section 16 of Chapter 84. The Central Government vide its exemption Notification No. 155/86, dated 1st March 1986 exempted the goods specified in Column 3 of the Table annexed with the Notification of the Duty of Excise leviable thereon which is specified in the said schedule (the Central Excise Tariff Act, 1985) as is in excess of the amount calculated in the rate specified in the corresponding entry in the Notification. This Notification dated 1st March 1986 refers to Heading No. 84.13 as under :
(1) (2) (3) (4)1. 84.13
(i) Power driven pumps primarily designed for handling water, namely :-
Nil
(a) Centrifugal pumps (horizontal or vertical pumps);
(b) Deep tube-well turbine pumps;
(c) Submersible pumps;
(d) Axial flow and mixed flow vertical pumps-
(ii) Other power driven pumps.
10% ad valorem
7. The petitioner claimed that in view of the Clause (2) of the Column (3) he is liable to pay excise duty at the rate of 10% only and Excise Duty payable over above the said rate under the Tariff Act is exempted under the Notification, This question obviously is related to determination of rate of Excise Duty to which accessories and parts of pump are to be subjected to. The controversy is limited to the issue whether in the absence of any provision one way or the other whether entries in the notification referred to the parts and accessories of such goods as envisaged in the heading of Section 16 of Chapter 84 or for want of express provision to that effect the benefit of exemption of paying Excise Duty at the reduced rate is not extended in the case of manufacturing of parts and accessories of such goods. Undoubtedly such question is a question of law but since it relates to determination of rate of Excise Duty payable thereon, the conclusion is irresistible that the reference under Section 35G is not envisaged under the Act of 1944. Such an order is directly challenged to Supreme Court under Section 35L.
8. The Tribunal therefore, was not in error in holding that no reference application lay for determination of such questions. As we do not find that the reference application is maintainable under Sub-section (1) no application under Sub-section (3) of 35G can be maintained which can be invoked only on failure of the Tribunal to make reference under 35(G)(1); it does not extend the scope of reference which can be directed by High Court by making reference of such questions which are not referable under Section 35(G)(1).
9. The application, therefore, fails and is hereby dismissed. No costs.