1. By the present Reference Application purporting to be under Section 35(1) of the Central Excises and Salt Act, 1944 (hereinafter called the Act), the Applicant requires of the Tribunal that a statement of the case decided in the Tribunal's Order No. 386-D/1983 dated 10.6.1983 be drawn up and the questions of law as in Annexure "B" to the application be referred to the High Court.
2. The matter was first listed for 7.10.83, but could not be fully heard for lack of time. The Bench however pointed out to Shri Tayal that the application appeared to be prima fade not maintainable. Shri Tayal stated that he would give thought to this aspect and added that he was awaiting instructions from the applicant Collector.
3. Shri D.N. Kohli, who appeared for the Respondents on that date, submitted an application in which he stated that the Excise Authorities had not so far complied with the direction in the Tribunal's order dated 10.6.83, and had not granted refund on the basis of that order.
He requested that the Excise authorities might be ordered to give effect to the Tribunal's order before the reference application was heard.
4. The matter again came up before us today. Before taking up the reference application on merits, we once again pointed out to Shri Tayal that it did not appear to be maintainable, as the question sought to be raised was one having relation to the rate of Excise duty. In its previous Order No. 586/1983-D dated 21.9.1983, on an application from M/s Ceakay Rubber Industries, the Bench had held that such an order was beyond the purview of Section 35G of the Act, and the only remedy against the order was an appeal in terms of Sub-section (b) of Section 35L of the Act. As Shri Tayal had no further submissions to make in favour of the reference application, we hold that it has to be rejected as incompetent and not maintainable.
5. Shri Madan drew our attention to the application made by Shri Kohli, and sought a further direction from us to the Excise authorities to give effect immediately to the Order dated 10.6.1983. Under that order, the Excise authorities have been directed to re-compute the average production on the basis of the two judgments cited therein, on being satisfied by the appellants in this regard, within a period of two months from receipt of the order. (We presume the respondents have furnished to the Excise Authorities [any further factual material which they might require for the purpose of calculating the amount due as refund.) New that the reference application is being rejected, we trust the refund will be calculated and paid without delay. We also trust the learned representative of the department will specifically bring our observations in this regard to the notice of the applicant Collector.