Customs, Excise and Gold Tribunal - Bangalore
Apollo Tyres Ltd. vs Commissioner Of Central Excise, Cochin on 25 January, 2002
Equivalent citations: 2002(141)ELT525(TRI-BANG)
ORDER G.A. Brahma Deva, Member (J)
1. This reference application is filed by M/s. Apollo Tyres Ltd., applicant, under Section 35G(1) of the Central Excise & Salt Act.
2. The Applicant filed Reference application on the ground that following questions of law arise out of the Order No. 1112/96, dated 12-6-96 and requested that the following questions to be referred to the High Court :-
1. Whether in the facts and circumstances of the case the levy of Special Excise Duty under the Finance Act, 1988 effective from 1-3-1988 on goods manufactured prior to the mid-night of 29-2-1988 and cleared on or after 1-3-1988 is right in law?
2. Whether on a clear reading of the judgments of the Supreme Court reported in 1989 (44) E.L.T. 598 and 1996 (83) E.L.T. 3, is not the Applicant entitled to the refund applied for in this case of the special excise duty collected from it on goods manufactured prior to the mid-night of 29-2-1988, but cleared on or after 1-3-1988 under the Finance Act of 1988 effective from 1-3-1988?
3. Reference application filed by the party has been dismissed by the Tribunal as per Order No. 65/97 holding that since the issue relates to the rate of duty the reference application is not maintainable and the proper course open for the relief in the matter is by way of appeal to the Hon'ble Supreme Court under Section 35(L) of the Central Excise Act, 1944. The party has filed a writ petition before the High Court of Kerala against the said rejection order and on considering the pleas made by the party the High Court as per order dated 11-1-2001 in O.P. No. 12408/97 took up the reference application afresh and pass orders thereon. While allowing the "petition", the High Court observed that the question 'whether goods are entitled to the benefit of an exemption notification also will affect the rate of duty, but as mentioned earlier in the present case, there is no dispute of these aspects. The goods were admittedly exempted upto 1-3-1988 and after 1-3-1988, it is liable for Special Excise Duty. On these facts we cannot accept the contention raised by the respondents that the dispute relates to the rate of duty.'
4. In pursuance of the direction of the High Court, the reference application is posted for hearing today i.e. 18-1-2002. None appeared on behalf of the applicant. However, they have requested to decide the matter on merits. Accordingly, we proceed to pass this order after hearing Shri Thomas George, D.R. for the Revenue.
5. Shri Thomas, while justifying the order passed by the Tribunal submitted that the Special Excise Duty levied was in a statutory book before 1-3-88 and the ratio of the decision of Supreme Court in the case of Wallace Flour Mills Co. Ltd. v. CCE reported in 1989 (44) E.L.T. 598 (S.C.) clearly applies to the facts of this case and therefore appellants are liable to pay duty at the rate chargeable at the time of clearance of the goods. It was also submitted by him that the said decision has been affirmed by the Supreme Court in the case of M/s. Navin Chemicals Mfg. & Trading Co. Ltd., reported in 1993 (68) E.L.T. 3. The Tribunal as per final order No. 1112/96 dated 12-6-96 held in the order that the goods were manufactured when there was an exemption from levy of SED before 1-3-88 and only at the time of clearance certain quantum of SED was chargeable. The duty has been correctly charged.
6. It was also submitted by the party in the written submissions for seeking decision on the merits that the matter may be decided as per the law laid down by the Supreme Court in the case of M/s. Navin Chemicals Mfg. & Trading Co. Ltd., reported in 1993 (68) E.L.T. 3 and 1989 (44) E.L.T. 598. Since the Tribunal has decided the issue herein following the ruling given by the Supreme Court in the cases referred to above, we do not find any justification to refer the question of law to the High Court as prayed for. Since the issue IMS already been concluded by the Supreme Court, further referring the question to High Court does not arise and in the view we have taken, the reference application filed by the party is hereby rejected.