Customs, Excise and Gold Tribunal - Mumbai
Commissioner Of C. Ex. vs Pepsico India Holding Ltd. on 7 June, 2000
Equivalent citations: 2000(122)ELT798(TRI-MUMBAI)
ORDER G.N. Srinivasan, Member (J)
1. The instant Reference application has been filed against the order passed on 16.02.99 and issued on 18.02.99, whereunder the Tribunal had directed waiver of deposit of duty demanded and penalty imposed. Surprisingly, the reference application has been filed under Sec. 35G(1) of the Central Excise Act. The said provision inter alia provides that the Collector of Central Excise may within 60 days upon which he served a notice under Sec. 35C of the Act may file an application requiring the Appellate Tribunal to refer to the High Court any question of law arising out of the said order. Sec. 35C of the Act provides inter alia that Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit.
2. From the perusal of the two provisions of Central Excise Act viz. Sec. 35C and Sec. 35G it will be clear that the Reference application can be filed only against final orders passed by the Tribunal. In the instant case, the Reference application has been filed against an application filed under Sec. 35F of the Central Excise Act.
3. When such is the position, it is surprised that the Commissioner of Central Excise, Mumbai II filed certain bunch of papers thrown at the registry treating it as application filed under Sec. 35G. When we look into the case law on this aspect, we find that the Divn. Bench of the Allahabad High Court in the case of CCE, Meerut v. President, CEGAT had held at paragraph 4 thereof as follows:
"A question that arose before us was about the maintainability of the present reference application. It may be noted here that the reference application made by the petitioner under Section 35G(1) had been rejected on the ground of being not maintainable as it arose from an interim order. We are in agreement with that view and are of the opinion that the application under Section 35G(1) was rightly rejected by the Tribunal. On the facts and circumstances of the present case the said application was not maintainable. What the petitioner should have done was that after the case had been decided on merits by the Tribunal after the receipt of the question referred to, the Collector Central Excise should have filed an application under Section 35G(1) for making a reference. This question which stood decided by the Tribunal by its final order dated 02.12.1986 the Collector while doing so also seeks reference in respect of the question which arose from the decision of the larger bench and has a bearing on the decision of the appeal on 02.12.1986. This has not been done. Therefore, it appears that the present application under Section 35F(3) is misconceived and is liable to be dismissed on merits."
4. The Larger Bench of the Tribunal in the case of ORG Systems v. CCE -1990 (49) E.L.T. 557 had held that there cannot be any reference application against interlocutory order or involving rate of duty and valuation. In another decision of the Tribunal in the case of Siemens Ltd. v. CCE, Calcutta -1988 (35) E.L.T. 153 the decision is to the same effect. In another decision, the Tribunal (SRB) in the case of HPC v. CCE where under the similar circumstances, the Tribunal refused to entertain the Reference application. The last but not the least, the Larger Bench judgment of the Tribunal consisting of 5 Members in the case of CCE v. Lai Chand Anand and Ors. -1986 (23) E.L.T. 530 the ld. 5 Members had held that a reference lies to the High Court only against orders finally passed by the Tribunal. It is, therefore, clear from the ratio of the judgments and the provisions of Sec. 35C and Sec. 35G of the Central Excise Act, no reference application has to be filed against interim order. It is surprising that the Commissioner has filed the Reference application for consideration of the Tribunal without even considering the provisions of the Act. Hence, it is dismissed.
5. Copy of the order is directed to be sent to the Chairman, CBEC for his consideration.