1. The application praying for restoration of the application dated 14-11-83 seeking a reference by the Tribunal to the High Court of Madras certain questions of law arising out of the order of the Tribunal dated 16-8-83 in appeal No. ED(MAS) 155/83 under Section 35G of the Central Excises and Salt Act, 1944, came up for hearing to-day.
2. The Reference Application dismissed for default is ordered to be restored for the reason stated in the affidavit filed along with the application for restoration. As the reference applicant as well as the respondent were willing to argue the case on merits, the same was taken up and heard to-day.
3. Shri P.M. Jummakhan, the learned Advocate for the applicant submitted that a question of law with reference to the scope, applicability and interpretation of proviso to Section 11A of the Central Excises and Salt Act, 1944 herein referred to as Act arises out of the order passed by this Tribunal meriting a reference to the High Court. In expatiating on this submission, the learned counsel contended that in view of the fact that factually there is no finding with reference to "fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of the Central Excises and Salt Act or the rules made thereunder, with intent to evade payment of duty," the Department would not be justified in raising a demand against the applicant by invoking the extended period of limitation under the proviso to Section 11A of the Act.
4. Shri S.K. Choudhury, the learned Senior Departmental Represen- tative in repelling the contention of the applicant, submitted that the only ground on which the lower appellate authority has allowed the appeal in favour of the present reference applicant is on the short and limited question of limitation. In other words, the lower appellate authority set aside the order of the Assistant Collector of Central Excise, IDO, Trichy, demanding a differential duty from the present reference applicant; on the only ground that the very demand was hit by limitation of six months' time under Section 11A of the Act. The Collector of Central Excise, who preferred an appeal against this order of the appellate authority before this Tribunal, mainly contended that there has been suppression of facts on the part of the applicant and the same could be unearthed only by a scrutiny of certain sale invoices issued by the applicant and in such circumstances the Department would be entitled to invoke the extended period of limitation under proviso to Section 11A of the Act. He further urged that this submission of the Department has been accepted by this Tribunal as a fact on consideration of the materials available on record as evidenced by the order of the Tribunal itself and therefore, no question of law arises out of the same meriting reference to the High Court.
5. I am inclined to agree with the submission of the learned Senior Departmental Representative and the only question that came up for consideration before the Tribunal was whether the extended period of limitation under proviso to Section HA of the Act is at all applicable in the facts and circumstances of the case. This Tribunal has factually found suppression of sales on the part of the applicant and held that in the circumstances the Department would be entitled under law to invoke the extended period of limitation under proviso to Section 11A of the Act. Since no question of law arises out of this finding of fact, I reject the contention of the learned counsel for the applicant in this regard.
6. The learned counsel for the applicant further submitted that this Tribunal itself has no jurisdiction to have entertained the appeal filed by the Collector of Central Excise as the matter arising for consideration involves a question of "rate of duty". The learned Senior Departmental Representative submitted that the question of rate of duty or classification was never the subject of dispute or controversy before this Tribunal at all and the appeal preferred by the Collector of Central Excise was limited only to the question of limitation and nothing else. Since the lower appellate authority himself did not go into any other aspects except the limited question of limitation and as the appeal by the Collector of Central Excise was only on the ground of limitation before this Tribunal, it was contended by the learned Senior Departmental Representative that the submission of the learned counsel for the applicant that this Tribunal would have, no jurisdiction to deal with the matter is not legally tenable. I am inclined to agree with this submission of the learned Senior Departmental Representative, keeping in view that the question relating to rate of duty or classification never came to be considered by the lower appellate authority who decided only question of limitation and limitation alone.
Apart from this, yet another factor that has to be borne in mind is that the present reference applicant did not choose to appear either in person or through any Advocate or authorised representative when the appeal was posted for hearing nor had he filed a memorandum of cross- objection after receipt of notice of appeal from the Tribunal. In such circumstances, when the appeal has been decided only with reference to the limited question of limitation under Section 11A of the Act, in my opinion, it is not open to the learned counsel for the applicant to raise for the first time the question of jurisdiction of this Tribunal and assail the validity of the order under reference. Strictly speaking, I will not have jurisdiction at all to consider the contention regarding jurisdiction at this stage when the appeal has already been decided and the application before me is only a reference application under Section 35G of the Central Excises and Salt Act, 1944.
7. The learned counsel for the applicant submitted that a question of law would arise as to whether Rule 10(1 )(a) is applicable to the facts of the case. Since this question never arose for consideration at all before this Tribunal, the question of making a reference to the High Court on this point also does not arise.