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Anil Starch Products Ltd. Vs. Collector of Central Excise - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1985)LC592Tri(Delhi)
AppellantAnil Starch Products Ltd.
RespondentCollector of Central Excise
Excerpt:
1. in this shri application, purporting to have been made under section 35g(1) of the central excises and salt act, 1944, m/s. anil starch products ltd. (hereinafter referred to as "the applicants") had required us to refer to the high court the questions as in the annexure to this order, which are stated to be questions of law arising out of the tribunal's miscellaneous order no. 104/84-d, dated 23-8-1984 [miscellaneous application ed(sb) 55/84-d].2. in order to appreciate the position, the sequence of events has to be stated. the applicants had filed a revision application to the central government against order-in-appeal no. 1688/80 dated, 24-10-1980 passed by the collector of central excise (appeals), bombay, in which he had upheld the order no. cl, no. ie/2/78, dated.....
Judgment:
1. In this Shri application, purporting to have been made under Section 35G(1) of the Central Excises and Salt Act, 1944, M/s. Anil Starch Products Ltd. (hereinafter referred to as "the applicants") had required us to refer to the High Court the questions as in the Annexure to this order, which are stated to be questions of law arising out of the Tribunal's Miscellaneous Order No. 104/84-D, dated 23-8-1984 [Miscellaneous Application ED(SB) 55/84-D].

2. In order to appreciate the position, the sequence of events has to be stated. The applicants had filed a revision application to the Central Government against Order-in-Appeal No. 1688/80 dated, 24-10-1980 passed by the Collector of Central Excise (Appeals), Bombay, in which he had upheld the Order No. CL, No. IE/2/78, dated 26-6-1978/18-10-1979 of the Assistant Collector of Central Excise, Division III, Ahmedabad, holding that the "Wet Dextrose" produced by the applicants was excisable and classifiable under item IE of the Central Excise Tariff Schedule. On the constitution of the Tribunal the revision application stood transferred under Section 3.^P Central Excises and Salt Act.

3. The matter was heard by Special Bench-D of the Tribunal and that Bench, by its Order No. 180/84-D, dated 2-4-1984, rejected the appeal.

4. Thereafter the applicants filed a Miscellaneous application under Section 35C(2) of the Central Excises and Salt Act which was titled as an application for review of the Order No. 180/84-D, dated 2-4-1984 passed by the Customs, Excise and Gold (Control) Appellate Tribunal.

The application was heard as an application in terms of Section 35C(2) by the same Bench which had passed the order dated 2-4-1984. By its Order No. Miscellaneous 104/84-D, dated 23-8-1984 and for the reasons given therein, the Bench rejected the application.

5. It is with reference to the above order dated 23-8-1984 rejecting the application under Section 35C(2), that the present reference application has been filed.

6. The application now before us was heard on 7-12-1984 by the same Bench which had passed the previous orders. At the outset the Bench pointed out to Shri Dholakia, the learned Advocate for the applicants, that the present application purported to be one arising out of the Tribunal's Order dated 23-8-1984. However, the questions proposed in the application (reproduced in the Annexure), appeared to be largely directed against the Tribunal's Order dated 2-4-1984. Shri Dholakia readily agreed that the reference application would have to be confined to questions arising out of the Order dated 23-8-1984. With the permission of the Bench, Shri Dholakia proceeded to reframe the questions and, in place of the questions originally raised, he submitted the following two questions as those which were required to be referred to the High Court : "1. Whether, in the facts and circumstances of the case, and in the light of the judgments of the Supreme Court in D.C.M. and South Bihar cases (which is the law under Article 141 of the Constitution), the decision of the Tribunal that the issue of marketability is a debatable one, constituted "a mistake apparent on the face of the record" 2. Whether, in the facts and circumstances of the case, the failure of the Tribunal, to follow the judgment in New Shorrock's case-1983 E.L.T. 2410 'though cited and relied upon) constituted "a mistake apparent from the record" ?".

7. Regarding the first question, Shri Dholakia laid stress on his argument that the Tribunal had held that the issue of marketability was a debatable one. He submitted that the issue of marketability stood settled by decisions of the Supreme Court and therefore by stating that this question was a debatable one the Tribunal had committed "a mistake apparent on the face of the record".

8. The Bench asked Shri Dholakia to indicate where exactly in the order under reference such an observation had been made. On this Shri Dholakia pointed to para 19 of the order, which reads as follows : "19. The entire case of the applicants as laid down in this application seeking rectification is based on debatable points.

There is no mistake or error apparent on record which needs rectification. A mistake apparent from the record must be obvious and patent mistake and not something which has to be established by long process of reasoning or arguments. A decision on a debatable point of law cannot be a mistake apparent from the record." Shri Dholakia argued that there was only one basic point for determination, namely whether the "Wet Dextrose" Was marketable.

Therefore, according to him, when the Tribunal referred to "debatable points" it must be held to have had in mind the question of marketability which already stood settled.

9. Shri Dholakia thereafter referred to the Tribunal's Order dated 2-4-1984. In para 10 of that order the Tribunal had observed "the contention of the learned consultant of the appellants that excise duty can be levied only on final finished products capable of being marketed cannot be accepted as correct. Even products which come at intermediate stage and are used for further manufacture are liable to excise duty".

The said para 10 went on to refer to the judgment of the Hon'ble Allahabad High Court in the case of Union of India and Ors. v. Union Carbide India Limited (1978 E.L.T. J 1), and quoted the observations of their Lordships that a thing would nevertheless be goods even if it does not have a general market, where it can be easily bought and sold.Reading para 19 of the Tribunal's Order dated 23-8-1984 with para 10 of the Tribunal's Order dated 2-4-1984, Shri Dholakia again contended that the words "debatable points" in the former order could refer only to the question of marketability.

10. As regards his second question, Shri Dholakia referred to the Tribunal's decision in the case of Collector of Central Excise, Baroda v. New Shorrock Mills, Nadiad (1983 E.L.T. 2410). He referred to paragraph 18 of that order, which reads as follows : "There is some force in Shri Tayal's arguments in so far as the question of levy of duty again after processing is concerned. But it does not answer the point that the excise authorities bad not gone into the question whether the goods at the grey stage were independently marketable. The respondents in this case are in Gujarat, and the facts of this case are almost identical to those of the case covered by the judgment of the Gujarat High Court. We have already held that we cannot hold the goods to be leviable to duty under both Item 19 1 (1A) and Item 22. If we have to choose between these two items, the appropriate item is obviously the one which is applicable to the goods at the stage at which they are cleared. In this view we consider that the Appellate Collector's order should be confirmed. We order accordingly." He argued that in that case the Tribunal had considered that independent marketability even at the intermediate stage was necessary.

In not following that decision in its order dated 2-4-1984 the Tribunal had gone wrong.

11. Shri Dholakia accordingly submitted that the two questions as reformulated by him were clearly questions of law arising out of the Tribunal's Order dated 23-8-1984. He further submitted that whether these questions were "strong" or "weak" was not relevant and that so long as they could be said to arise out of the order under consideration they were required to be referred to the High Court.

12. At this stage the Bench pointed out to Shri Dholakia that Section 35G of the Central Excises and Salt Act, under which the present application had been made, specifically excluded from the scope of that provision "an order relating among other things to the determination of any question having a relation to the rate of duty of excise...". Since the issue in the present case was whether the goods were excisable and were classifiable under a particular Item No. IE of the Central Excise Tariff Schedule, they prima facie appeared to be hit by the exclusion clause. In view of this, Shri Dholakia was asked how the application could be considered as maintainable in terms of Section 35G. On this Shri Dholakia submitted that there was a distinction between a question of "leviability" and a question of "rate of duty".

13. The Bench drew Shri Dholakia's attention to the decisions of the Tribunal in the case of Union Carbide India Limited, Calcutta v.Collector of Customs, Calcutta, reported in 1984(18) E.L.T. 449 wherein the scheme of the Act had been analysed and it has been noted that a clear distinction had been made between cases involving a determination of rates of duty or value for purposes of assessment on the one hand and those which did not involve any of the aforesaid issues on the other. The former category of cases had been reserved for Special Benches of three Members or more, whereas the latter were heard by two-Member Regional Benches. Shri Dholakia's argument amounted to saying that where a dispute was as to whether certain goods should be assessed at a higher rate or lower rate of duty the matter should be heard by a Special Bench but where the contention was they should not be assessed to duty at all they should be heard by a Regional Bench.

This appeared to go against the principle of harmonious construction as well as the scheme of the Act. On this Shri Dholakia replied that the question as to which Bench should hear which matter was one of administrative arrangements and would not affect the legal position.

14. Replying for the Department, Shri Raghavan Iyer, referred to para 18 of the Tribunal's Order dated 23-8-1984, which reads as follows : "18. A perusal of the impugned Order shows that Para 10 of this Order discusses the point of marketability. In view of the decision of the Allahabad High Court in the case of Union of India v. Union Carbide India Limited (1978 E.L.T. J 1) which inter alia discusses the entire case law on the subject as contained in the decisions of Supreme Court in Delhi Cloth & General Mills Co. Limited (supra) and South Bihar Sugar Mills (AIR 196H S.C. 922) it is settled law that before Excise duty can be levied, the goods brought into existence must be the goods which can be bought and sold in the market, though they may not actually be marketed. In our order we have held that 'Glucose' and 'Dextrose' have been used synonymously, meaning thereby 'Dextrose' are actually 'Glucose'. The expression 'Wet Dextrose' is an invention of the applicants themselves. On this basis, we have held that this product 'Wet Dextrose' is liable to excise duty under Tariff Item No. IE-GET." Reference had been specifically made to the decisions of the Hon'ble Supreme Court in the case of Delhi Cloth and General Mills and South Bihar Sugar Mills, and it had also been noted that the law was settled.

Therefore, there was no apparent error on a question of law nor did any question of law arise from the order. The contention of the applicants was that their goods were not marketed, and that there was no proof that they could be marketed. This amounted to saying that the Tribunal had gone wrong on a question of fact. But, this would not entitle a reference to be made, since it was a pure question of fact and not even a mixed question of law and fact. The applicants had a clear remedy, which was to go up in appeal to the Supreme Court as provided in Section 35L of Central Excises and Salt Act, and it was not as if they could get relief only by means of a reference application.

15. Shri Raghavan Iyer then argued on the question of maintainability of the application in terms of Section 35G, Central Excises and Salt Act. He referred to the argument of Shri Dholakia that the point at issue was not one regarding a rate of duty, but one whether the goods were at all excisable and liable to duty. Shri Raghavan Iyer submitted that the exclusion under Section 35G was of an order relating among other things to the determination of any question having a relation to the rate of duty of excise. He submitted that the question whether an article was excisable and liable to duty clearly had a relation to the rate of duty of excise ; the excisability of the goods was a necessary pre-condition for applying a particular rate of duty. The imposition of a levy and the collection of duty at a particular rate were clearly connected matters. Therefore, the terms of the exclusion were wide enough to cover also an argument that the goods were not liable to duty at all. <, 16. Shri Raghavan Iyer referred to the argument of Shri Dholakia that the distinction in the jurisdictions of Special Benches and Regional Benches was an administrative arrangement. He submitted that the provisions of the statute had to be interpreted in a harmonious and consistent manner, and in doing so the administrative apparatus provided in the statute could not be ignored. Here these considerations clearly demanded that the question of excisability also should be held as one having relation to a rate of duty and calling for decision by a Special Bench.

17. Coming to two questions posed by Shri Dholakia, Shri Raghavan Iyer took up the first question turning on the observation that the case of the applicants was based on debatable points. He submitted that the onus was on the applicants to indicate precisely the observations on findings on the basis of which they sought a reference. The Tribunal had nowhere stated, as presumed in the first question, that the issue of marketability was a debatable one. It had only said that the case of the applicants seeking rectification was based on debatable points, and this was in the context of the scope of an application for rectification, where the question was whether there was an error apparent from the record. According to him the question raised was how to apply the law as laid down in certain decisions, and not as regards any proposition of law. The basic question which had been agitated was one of fact, namely whether the goods were marketable. If that question were to be examined in the light of facts and circumstances, then one would have to go back to the Tribunal's Order dated 2-4-1984, which, as accepted by Shri Dholakia, could not be the subject matter of the present application.

18. As regards the second question, where it had been stated that the Tribunal had not followed its decision in the case of New Shorrock Mills, Shri Raghavan Iyer submitted that, even assuming that the decision there was applicable to the present case, the Tribunal was not bound by its own previous decision.

19. In the result, Shri Raghavan Iyer submitted that the present application was not maintainable under Section 35G, and even assuming it to be maintainable, there were no questions of law which required reference to the High Court. The proper remedy for the applicants was to have filed an appeal to the Supreme Court under Section 35L against the order dated 2-4-1984 and they could not seek to obtain relief by invoking the provisions for rectification of errors or for a reference to the High Court 20. Thereafter, Shri Dholakia was given the opportunity to reply to Shri Raghavan Iyer. At this stage, and with reference to the maintainability of the present application under Section 35G, the Bench pointed out to Shri Dholakia that an application in circumstances such as the present would necessarily have to be considered in the light of the first decision (the order dated 2-4-1984 in this case). If Shri Dholakia's contentions were correct, it would appear to follow that a party, after receiving an order unfavourable to him, could sleep over the matter for nearly four years, then file an application under Section 35C(2), and if it was rejected, file a reference application which would ostensibly arise from the order on the rectification application but would in fact be directed against the original order thus defeating the limitation provision in Section 35G in regard to reference applications. Shri Dholakia's reply was that the failure to file a reference application against the original order would not debar a party from filing a rectification application subsequently, and also a reference application based on a rectification application. However, the remedy which he could seek from the reference application would be restricted to questions of law arising out of the order on his rectification application.

21. Shri Dholakia referred to Shri Raghavan Iyer's submission that the Tribunal had nowhere stated that the issue of marketability was debatable. He reiterated that there was only one question in their appeal, which was whether the goods were capable of being marketed or not, and it was this question which was the basis of their entire case.

Therefore, when the Tribunal stated that the entire case of the applicants was based on debatable points, it could only have reference to the question of marketability. As regards Shri Raghavan Iyer's submission that in para 18 of the order dated 23-8-1984 the position in law had been clearly and correctly stated, Shri Dholakia submitted that what was stated in para 18 was contrary to what had been stated in the order dated 2-4-1984. In this context he referred to the observation in para 10 of the order dated 2-4-1984 that "the contention of the learned consultant of the appellants that excise duty can be levied only on final finished products capable of being marketed cannot be accepted as correct." 22. As regards the question of maintainability of the application under Section 35G, Shri Dholakia again submitted that there was a distinction between excisability and rate of duty. Where certain goods were not excisable at all, then the Central Excises and Salt Act did not apply to those goods and no question arose as regards the rate of duty. The question of excisability was too far "removed from the question of rate of duty to be hit by the exclusion clause.

23. Shri Dholakia referred in passing to the decision of the Supreme Court in the case of Sree Meenakshi Mills Limited v. C.I.T. (31 I.T.R.28 S.C.), setting out the circumstances in which a reference would lie to the High Court from an order of the Income-tax Appellate Tribunal.

He concluded by submitting that the two questions as reformulated by him (vide para 7 above) should be referred to the High Court.

24. Shri Raghavan Iyer sought permission to make a brief explanation with reference to the submissions regarding Para 10 of the order dated 2-4-1984, to which specific reference has been made by Shri Dholakia.

He submitted that the interpretation sought to be put by Shri Dholakia on this sentence as being contrary to the law laid down by the Supreme Court, was not justified. What was sought to be conveyed by this paragraph was that the test of general marketability was not sound, particularly in the case of a monopoly product, but the need for marketability as such was not ignored. Shri Dholakia did not wish to make a further reply.

25. We have given our careful consideration to the arguments advanced by Shri Dholakia in support of his application. As far as we are aware, this is the first occasion on which such an application has been presented to the Tribunal, seeking a reference from an order on an application for rectification of an order on an appeal passed by a Special Bench.

In dealing with this matter, we have to take into account the scope of the orders which can be passed under three different provisions of the Central Excises and Salt Act, meant for three different situations, namely Section 35C (1), empowering the Tribunal to pass on an appeal such orders as it thinks fit; Section 35C (2), empowering the Tribunal to rectify a mistake apparent from the record on an order passed under Section 35C (1) ; and Section 35G, empowering the Tribunal to state and refer to the High Court questions of law arising out of an order under Section 35C. In the course of the present application, the effect and scope of all the above three provisions has to be considered, but it is important to ensure that each provision is invoked only to the extent of its own scope.

26. It was in this context that we had pointed out to Shri Dholakia the provision in Section 35G(1) which excludes from its scope "an order relating among other things to the determination of any question having a relation to the rate of duty of excise..." We have set out in para 2 above the effect of the orders of the Assistant Collector and the Collector (Appeals), which was that "Wet Dextrose" was held as excisable and classifiable under Item IE of the Central Excise Tariff Schedule. Our order dated 2-4-1984 also had relation to the same questions, namely whether "Wet Dextrose" was excisable and whether the decision to classify it under Item IE was correct. After detailed discussion we had held in Para 10 of that order that "Wet Dextrose" was excisable. In para 16 of the same order we further held that "Wet Dextrose" was nothing but a form of glucose and that it was rightly classifiable under Item IE C.E.T. In their application under Section 35C(2), the applicants again advanced a number of points bearing on the marketability of the "Wet Dextrose" and challenging the findings in the order dated 2-4-1984. In the present reference application also, the questions originally sought to be referred to the High Court (vide Annexure) again referred to the question of marketability and consequently of excisability. Even in the questions as reframed at the hearing by the learned Advocate of the applicants (vide para 7 above) the question of marketability has been specifically raised.

27. The question of marketability has been raised in support of the applicants' contention that the "Wet Dextrose" was not excisable and therefore should not have been charged to duty, whereas it had been ordered to be charged to duty under Item IE of the Central Excise Tariff Schedule. In view of the exclusion in Section 35G, to which reference has been made above, we had asked Shri Dholakia how the present application could be said to be maintainable in terms of the provisions of that section. We had also drawn his attention to the Tribunal's decision in the case ot Union Carbide India Limited \.

Collector of Customs, Calcutta (1984 E.C.R. 1634). In that order the Tribunal had examined in great detail the scope of Section 130 Customs Act, which is in part materia with Section 35 of Central Excises and Salt Act. As a result the Tribunal had construed the words "an order relating to" in Section 130(1) Customs Act to mean "an order standing in some relation to" or "an order concerning or pertaining to" the determination of any question relating to rate of duty of customs or to the value of goods for assessment and not "an order whose dominant purpose or theme is the determination" of the aforesaid issues. This decision is equally applicable to the parallel provisions of Section 35G, Central Excises and Salt Act. If the order passed under Section 35C(1) is hit by the exclusion clause in Section 350(1), then no reference to the High Court would lie from such an order ; equally, where an order under Section 35C(2) has a relation to the ratio of the decision in an order passed under Section 35C(1) (as in the present case) such order would be equally hit by the exclusion clause and no reference under Section 35G would lie against such an order passed under Section 35C(2).

28. Shri Dholakia did not contest the above proposition. He however tried to draw a distinction between a case where it is contended that the goods are not excisable at all, and a case where the excisability is. not in doubt but the dispute is as regards the rate of duty applicable, which could even be a "nil" rate of duty, as has been provided in respect of some goods. According to him, in this case the dispute was only as to whether the "Wet Dextrose" was excisable or not, based on the applicants' contention that it was not marketable, and this could not be considered as a question having a relation to a rate of duty.

29. This contention or Shri Dholakia was opposed by Shri Raghavan Iyer on the grounds set out in para 15 above, 30. We have given our careful consideration to this issue. As pointed out in the Tribunal's order in the case of Union Carbide India Limited (para 27 supra), a clearcut distinction has been made in the provisions relating to the Tribunal between cases involving a determination of rates of duty or value on the one hand and those which do not involve any of the aforesaid issues, on the other. We had also held that "it is manifestly and indisputably the legislative intent to provide for an authoritative and speedy (not protracted or dilatory) determination finally of the issues relating to the rate of duty or value for purposes of assessment. Accordingly, an appeal before the Tribunal involving the said issues is to be decided by a Special Bench of three Members of the Tribunal and an appeal from the Tribunal's order (in Appeal) is provided straightaway and as of right, under Section 130E(b) of the Act (i.e. without certificate or Special Leave), to the Supreme Court - the final Court of Justice." In this view of the scheme of the provisions relating to the Tribunal (whether in Customs or in Central Excise matters), there is little scope to argue that a ''nil" duty is not a rate of duty. It would be illogical in the extreme to hold that the Legislature intended the provisions of hearing by a Special Bench and an appeal direct to the Supreme Court to be applicable in a case where the dispute was whether (for example) duty should be levied at 10% or 5%, but not in a case where the dispute was whether the duty should be levied at 10% or not at all.

31. Shri Dholakia sought to draw a distinction between a "nil" duty and non-leviability of duty. This could perhaps he argued as a proposition in abstract logic, but again having regard to the scheme of the provisions relating to the Tribunal, it would lead to illogical and anomalous results. If this were the correct legal position, a case where one had to choose between a 10% rate of duty under the tariff and a "nil" rate of duty under an exemption notification would attract the provisions relating to a Special Bench and an appeal direct to the Supreme Court, while a case where one had to choose between a 10% rate of duty and non-leviability of duty would not. We do not think that we would be justified in adopting such an anomalous interpretation, when there is available another interpretation which is not only plausible but also confers on the assessee the benefit of consideration by a Special Bench and an appeal direct to the highest Court in the land.

32. Apart from our conclusion in para 30 above, there is the further point made by Shri Raghavan Iyer, namely that the question of excisability is itself a question having a relation to the rate of duty of excise. The question of excisability is clearly relevant and related to the application of a particular rate of duty. This can well be seen from the fact that in his Order-in-Original the Assistant Collector has in the same breath recorded his conclusion that " 'Wet Dextrose' is excisable arid classifiable under T.I. IE..".

33. We are therefore of the view that, inasmuch as the Tribunal's Order dated 2-4-1984 relates both to the excisability of "Wet Dextrose" and to its appropriate classification under the Central Excise Tariff Schedule, it clearly falls within the exclusion in Sub-section (1) of Section 35G ; that since the Tribunal's Order dated 23-8-1984 has a relation to the ratio of the order dated 2-4-1984, it is in turn hit by the above-mentioned exclusion clause ; and that consequently the present reference application is not maintainable under Section 3 5G.34. In view of this conclusion it is not necessary for us to deal with Shri Dholakia's reference to the judgment of the Supreme Court in the Sree Meenakshi Mills case.

35. Although our conclusion in para 33 above is sufficient to dispose of the present application, we are taking the opportunity of making some further observations with reference to the very detailed arguments which were placed before us.

36. A reference application under Section 35G, even if otherwise maintainable, is subject to the limitation contained therein It must be made within 60 days of the date of service of the order which is the subject-matter of the reference, this period being extendable by upto 30 days on sufficient cause being shown. No reference application was made in respect of the order dated 2-4-1984 within the prescribed period of limitation or at all. Instead, the applicants filed a rectification application, which was considered and rejected. Their present reference application, which was received in the Tribunal on 5-11-1984, purports to be against the order dated 23-1-1984, but for all practical purposes it is against the Tribunal's Order dated 2-4-1984. This would be clear from the arguments which Shri Dholakia advanced in support of the present application. He had particularly referred to para 19 of the order dated 23-8-1984, in which it was observed that "The entire case of the applicants as laid down in this application seeking rectification is based on debatable points". Shri Dholakia had first submitted that the Tribunal had held in its order dated 23-8-1984 that the issue of marketability was a debatable one.

When he was asked to point out where exactly this observation had been made in that order, he referred to the above observation and sought to argue that this amounted to saying that the issue of marketability was a debatable one. He further supported his argument by referring to para 10 of the order dated 2-4-1984.

37. As pointed out to Shri Dholakia, there is no observation in the order dated 23-8-1984 that the issue of marketability is a debatable one. What was said was that the entire case of the applicants in the application seeking rectification was based on debatable points. This observation was made in the context of deciding whether the order dated 2-4-1984 contained a mistake apparent from the record, in which case only Section 35C(2) could be invoked. What Shri Dholakia sought to do was to impute to the Tribunal with reference to its order dated 23-8-1L 84 an observation which it had not made in that order, and then assail the above supposed observation and make it the basis of a reference to the High Court. Even this he could do only by taking us back to observations contained in the order dated 2-4-1984. Thus the reference application is in effect and in substance directed against the Tribunal's first order dated 2-4-1984. As already pointed out, no reference application was made against that order during the limitation period or at all. By the present application the applicants are in effect trying to achieve indirectly what assuming that a reference application could at all be maintainable) they failed do directly within the normal or extended time which was available to them his is a further reason why we hold that the present application is misconceived.

38. Since the present application is not (and cannot be) for a reference against our order dated 2-4-1984, we are not dealing with it at length ; nevertheless we may mention in passing that para 10 of the order dated 2-4-1984 'as essentially concerned with the situation of a monopoly product which as captively consumed (a situation squarely covered by the judgment of the Allahabad High Court cited in that paragraph). While respectfully following to decision of that High Court, the Tribunal certainly did not say, and cannot mere presumption be taken to have said, that the general law on the subject as laid down by the highest Court in the land was not applicable.

39. Incidentally, we may observe that on a writ petition filed by the applicants to the Delhi High Court in, connection with this very matter, the Hon'ble High Court had inter alia observed as follows : "In our opinion the question as to whether Wet Dextrose has been or can be removed is of little significance. Now, with the amendment of Rules 9 and 49 of the Central Excise Rules, it is not necessary for an item to be removed from the place of manufacture in order to subject it to excise duty. If goods are manufactured then the same would be subjected to tax if the said goods are specified in the Excise Tariff." That the Tribunal has said in paras 10 and 16 of the order dated 2-4-1984 in substance what had been earlier said by the Delhi High Court in much more succinct and felicitous terms.

40. We accordingly hold that the present reference application is not maintainable in terms of the provisions of Section 35G, Central Excises and Salt Act; and even if it be assumed for the sake of argument that it is maintainable, we further hold that no question of law calling for reference to the High Court arises out of the Tribunal's Order dated 23-8-1984 (as distinct from the Tribunal's Order dated 2-4-1984) and we accordingly reject this application. Questions of law arising out of the Order of the Appellate Tribunal (as set out in Annexure-B to Reference Application dated 30-10-1984).

1. What is the true meaning and scope of the words "Any mistake apparent from records" appearing in Section 35C(2) of the Act 2. Whether refusal to rectify the mistake or error apparent in the face of record viz. in not following the tests of marketability for attracting the levy of excise, in light of Hon'ble Supreme Court's judgment in Delhi Cloth Mills case (AIR 1963 S.C.), and South Bihar Sugar Mills ease (AIR 1968 S.C.), will make the decision of Tribunal dated 23-8-1984, bad in law and patently illegal or not 3. Whether not following the well settled tests of marketability, a law laid down by the Supreme Court, will not be error apparent from the records 4. The test of marketability to attract the levy of excise, which is the law laid down by the Supreme Court, in Delhi Cloth and General Mills case and South Bihar Sugar Mills case, referred to above and followed by the various High Courts, can be said to be the debatable point of law 5. Did the Tribunal not err in law for not examining all the technical literature as desired by the High Court of Delhi in their order in the SCA No. 1207 of 1981 6. Whether the act of Tribunal in not taking into consideration, the details of the documents attached to the case records, or the act of not assigning any reasons for doing so, can be said to be a mistake apparent on the face of records or not 7. Did the Tribunal not err in law in not following its own decision reported in 1983 E.L.T. 2410 ?


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