1. The Department has filed this reference application under Section 35G of the Central Excises and Salt Act, 1944. Shri Rakesh Bhatia, SDR appeared for the applicant Collector and none for the respondents.
2. The respondents filed a revision application against the order of the Appellate Collector dated 19-5-1980 which was treated as an appeal.
The brief facts were that the Superintendent of Central Excise, Cochin, issued a show cause notice to the respondents herein on 31-1-1979 demanding differential duty amounting to Rs. 5,265.07 for the period 1972-73 to 1975-76 under Rule 10A. The respondents stated that the demand was barred by limitation. The Assistant Collector and the Appellate Collector confirmed the demand. Against the Appellate order a revision was filed and was treated as an appeal. This Bench, following the decision of the Tribunal reported in 1984 (17) E.L.T. 331 (Atma Steels Pvt. Ltd. and Ors. etc. v. Collector of Central Excise, Chandigarh and Ors.), held that the demand could not be sustained and allowed the appeal on the question of limitation.
3. The Revenue now submit that a question of law would arise in the following terms : "Whether in the case of short levy of Central Excise duty prior to 6-8-1977, the time limit for the issue of notice is not the one contained in old Rule 10A of the Central Excise Rules on the principle that laws are prospective in operation and that the State acquired a right to demand the short levy with reference to the law as it stood when the short levy occurred, i.e. in that case under Rule 10A." 4. Shri Rakesh Bhatia urged that the Tribunal has erred in following the ratio in Atma Steels Pvt. Ltd. and that there is a case for statement of the question to the High Court under Section 35G.5. Section 35G contemplates a reference to the High Court on any question of law arising out of an order, provided that the order should not be one relating among other things to the determination of any question having a relation to the rate of duty of excise or to the value of the goods for the purposes of assessment. The words 'having a relation to the rate of duty of excise or to the value of the goods for the purposes of assessment' are of wide import and significance.
Admittedly, the main appeal involved a question of valuation, namely, the cost of manufacture of the metal containers on the basis of the cost work-sheet of the cost accountant. The metal containers were captively consumed and the assessable value had been fixed under Rule 6(b)(ii) of the Central Excise (Valuation) Rules, 1975. Though the appeal was disposed of by the Tribunal on the question of limitation it cannot be said that the order in question is not one relating to the value of the goods for the purposes of assessment. In 1984 (16) E.L.T.640 (India Jute Co. v. Collector of Central Excise, Culcutta) the question arose regarding the interpretation of the words 'having a relation to the rate of excise duty'. During the course of examination of this question, the ruling of Supreme Court reported in AIR 1961 SC 1633 (Commissioner of Income Tax v. Scindia Steam Navigation Co.) was referred to. The Supreme Court, inter alia, held that when a question of law is raised before the Tribunal but the Tribunal failed to deal with it, it must be deemed to have been dealt with by it and is, therefore, one arising out of its order. Following that ruling even if the Tribunal had disposed of the appeal on the preliminary ground of limitation, the question relating to the value of the goods for the purpose of the assessment, must be deemed to have been dealt with by the Tribunal in its order. Such an order would remain an order "having relation to the determination of the question having relation to the value of the goods for the purposes of assessment".Union Carbide India Ltd., Calcutta v. Collector of Customs, Calcutta) an identical question arose under Section 130 of the Customs Act, 1962. It was held that an order made by any judicial tribunal is on the case before it. It does not exist in the void being one, necessarily, made in relation to the case decided by the Tribunal. It may be that the case could be decided on a preliminary issue. That does not mean the order, is, any the less, an order in relation to the case.
7. In view of the above discussion we do not accept the contention of Shri Rakesh Bhatia that Section 35G would be attracted. No reference to the High Court would lie since the order in this case relates to the value of the goods for the purposes of assessment. This application is therefore dismissed.