1. M/s Bharat Fritz Werner (P) Ltd., Bangalore, respondent herein, on clearing excisable goods between 25-5-1978 and 8-11-1978 to Central Tool Room and Training Centre, Calcutta, filed a refund claim dated 25-6-1979 with the jurisdictional Assistant Collector, referring to the special exemption order dated 17-1-79 issued by the Central Board of Excise & Customs, New Delhi, under Rule 8(2) of Central Excise Rules, 1944 which was communicated by Trade Notice No. 46/79 dated 22-2-79 of the Bangalore Collectorate. The Assistant Collector of Central Excise, Bangalore, contended that the Trade Notice No. 46/79 had no retrospective effect and rejected the claim as time barred under Rule 11 of Central Excise Rules, 1944 (Annexure B).
2. The Respondent filed an appeal before the Collector of Central Excise (Appeals), Madras, who rejected their appeal by his Order-in-Appeal No. 303/83(B) dated 9-12-1983 on the ground that the Central Board of Excise and Customs have no powers to issue any order with retrospective affect (Annexure C). Then the respondent preferred an appeal before the South Regional Bench of Customs, Excise and Gold (Control) Appellate Tribunal, Madras, against the Order-in-Appeal. The Tribunal in its order dated 15-2-85 in No. ED(MAS) 37/84 upheld the contention of the respondent with regard to Board's power to issue orders with retrospective effect and allowed their appeal with consequential relief (Annexure A).
3. The applicants have filed this application under Section 35G of the Central Excises & Salt Act,- 1944 for referring the following questions said to be of law and arising from the order of the Tribunal:- i. Whether the special order issued by the Central Board of Excise and Customs, New Delhi, with regard to ad hoc exemption under Sub-rule (2) of Rule 8 of the Central Excise Rules, 1944 will have retrospective effect? ii. Whether any claim for refund made for the duty paid clearances, prior to the issue of the above mentioned order of the Board, that too well after the stipulated period of six months as required under the old Rule 11 ibid will have its validity? 4. We have heard both sides. As a result of discussion, it has been decided that the following question of law will be referred to the Honourable High Court of Judicature, Karnataka at Bangalore and is accordingly referred:- "Whether Order No. F 350/6/78-TRU, dated 17.1.79 issued by the Central Board of Excise and Customs, in exercise of the powers under Rule 8(2) of the Central Excise Rules, 1944 could be given effect to by way of grant of a refund to the assessee, when the relevant goods in respect of which the Order has been issued have already been cleared on payment of Central Excise duty".