1. By the present reference application purporting to be under Sections 35G and 35H of the Central Excises and Salt Act, 1944, the applicant, namely the Collector of Central Excise, Indore, requires of the Tribunal that a statement of the case decided in the Tribunal's Order No. 392D/1983 dated 15-6-1983 be drawn up and the questions of law as in paragraph 8 of the application be referred to the Supreme Court.
2. When the matter was called today, Shri K.D. Tayal, SDR, appeared for the applicant Collector and Smt. Rainu Walia for the respondent. The Tribunal had also received a telegram which appears to be from the respondent sugar mill, seeking an adjournment on the ground that no copy of the referepce application had beep received from the "appellant". However, for reasons which will be apparent, we did not find it necessary to adjourn the matter.
3. We pointed out to Shri Tayal that the Order dated 15-6-1983, in respect of which a reference was asked for, had been passed by a Special Bench of the Tribunal on a matter relating among other things to the determination of a question having a relation to the rate of duty of excise. The questions framed by the applicant Collector also related to the interpretation of an exemption notification involving the application of different rates of duty of excise. In our previous Orders in similar cases (vide our Order No. 586/1983D dated 21-9-1983 on an application from M/s. Ceekay Rubber Industries, and Order No.629/1983D dated 13-10-1983 on an application from the Collector of Central Excise, Meerut) we had held that an order having relatiom to the rate of excise duty was beyond the purview of Section 35G of the Central Excises and Salt Act, and the only remedy against such an order was an appeal in terms of Sub-section (b) of Section 35L of that Act.
4. Shri Tayal stated that he was aware of these Orders, but submitted that the present application was slightly different, because the applicant Collector had invoked Section 35H as well as Section 35G, and had sought a reference to the Supreme Court in view of a conflict stated to exist between the decisions of different High Courts. On this it was pointed out to him that Section 35H had to be read with Section 35G. It could be invoked only on an application made under Section 35G, if the Tribunal was of opinion that on account of conflict in the decisions of High Courts, it was expedient that a reference should be made direct to the Supreme Court. Thus, in order to have Section 35H invoked, there had first to be a reference under Section 35G. If that reference itself was not maintainable, there could be no question of entertaining it and of making a reference under Section 35H.5. As Shri Tayal had no further submissions to make, we hold the present reference application as incompetent and not maintainable, and accordingly reject it.