Sreeranga Chettiar v. Collector of Central Excise — 1992 DIGILAW 164 (KER)

Judgment :- Paripoornan, J The petitioner is a trader. He carries on the business in tobacco. Excise duty and penalty were imposed on him, under the Central Excises & Salt Act, for violating the Central Excise Rules. He filed an appeal before the appellate Collector of Central Excise, Madras, who reduced the penalty. The further revision filed before the Central Government was later converted into an appeal and disposed of by the Customs, Excise and Gold (Control) appellate Tribunal, South Regional Bench, Madras. The appellate Tribunal, by order dated 18-8-1983, reduced the penalty to Rs.500/-. Thereafter, the petitioner filed an application (Annexure-D) under S.35-G(1) of the Central Excises and Salt Act, for referring certain questions of law for the decision of this Court. The Customs, Excise and Gold (Control) appellate Tribunal, by order dated 2-4-1984, held that no point of law has been specifically posed or formula ted by the petitioner; nor could the Tribunal find out any such point in the long statement and dismissed the reference application. Thereafter, the petitioner has filed this Original Petition under S.35-G(3) of the Central Excises and Salt Act, 1944.' 2. We heard counsel. It was argued that the appellate Tribunal could have spelt out or culled out a point of law from the detailed statement (five pages) submitted by the petitioner - Annexure-D. Counsel for the petitioner very forcefully. pressed the point that the reference application should not have been thrown out on a technical or flimsy ground that the questions of law were not formulated in the application filed under S.35-G (1) of the Act. On the other hand. counsel for the Revenue Mr.Abul Hassan. Addl. Central Government Standing Counsel. submitted that under S.35-G(1) of the Act the petitioner was bound to file an application in the prescribed form. Rule 218 of the Central Excise Rules. 1944 read with Form No.E-A.6 behaves the petitioner to pointedly formulate the questions of law which the Tribunal is required to refer to this Court under column 8 and it is those questions. formulated in column 8. the petitioner/ applicant can require the Tribunal to refer to this Court under S.35G (1) of the Central Excises and Salt Act. 1944. as could be seen by column 9 in Form No.E.A.6. This is a matter of substance. The questions of law to be referred to this Court are not formulated at all. formulated in column 8. the petitioner/ applicant can require the Tribunal to refer to this Court under S.35G (1) of the Central Excises and Salt Act. 1944. as could be seen by column 9 in Form No.E.A.6. This is a matter of substance. The questions of law to be referred to this Court are not formulated at all. There is no occasion for the Tribunal to consider the matter. as required by the Act. In such circumstances. this Court cannot also compel! or direct the Tribunal to refer the questions. which have been formulated for the first time in the petition filed in this court. in paragraph 24. 3. We are of the view that the plea of the Revenue should succeed. S.35-G(l)and (3) of the Central Excises and Salt Act. 1944. R.218(1) and (3) of the Central Excise Rules. 1944 and Form No.E.A.6 are relevant to settle the controversy in this case. They are as follows "35G. Statement of case to High Court:--(1) The Collector of Central Excise or the other party may. within sixty days of the date upon which he is served with notice of an order under S.35C (not being an order 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 goods for purposes of assessment). by application in the prescribed form. accompanied. where the application is made by the other party. by a fee of two hundred rupees. require the appellate Tribunal to refer to the High Court any question of law arising out of such order and. subject 'to the other provisions contained in this section. the appellate Tribunal shall. within one hundred and twenty days of the receipt of such application. draw up a statement of the case and refer it to the High Court. Provided that the appellate Tribunal may. if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period herein before specified. allow it to be presented within a further period not exceeding thirty days. (3) If. on an application made under sub-section (1). the appellate Tribunal refuses to state the case on the ground that no question of law. arises. the Collector of Central Excise. or. as the case may be. the other party may. allow it to be presented within a further period not exceeding thirty days. (3) If. on an application made under sub-section (1). the appellate Tribunal refuses to state the case on the ground that no question of law. arises. the Collector of Central Excise. or. as the case may be. the other party may. within six months from the date on which he is served with notice of such refusal. apply to the High Court and the High Court may. if it is not satisfied with the* correctness of the decision of the appellate Tribunal. require the appellate Tribunal to state the case and to refer it. and on receipt of any such requisition. the appellate Tribunal shall state the case and refer it accordingly." Central Excise Rules, 1944 "Rule 218. Form of application to the appellate Tribunal for reference to the High Court: (1) An application under sub-section (1) of S.35G requiring the appellate Tribunal to refer to the High Court any question of law shall be made in Form No.E.A.6 and such application shall be filed in triplicate. (3) Where an application under sub-section (1) of S.35G or a memorandum of cross-objection under sub-section (2) of that section is made by any person other than the Collector of Central Excise. the application. the memorandum and the forms of verification as contained in Form Nos. E.A.6 and E.A.7 respectively shall be signed by the person specified in sub-rule (2) of rule 213". FORM NO. E.A.6 [See Rule 218 (1) Form of Reference Application under S.35G(1) of the Central Excises and Salt Act, 1944 In the Customs. Excise. Gold (Control) appellate Tribunal. In the matter of appeal of...(name of the appellant). Reference Application No of 19 (To be filled in by the officer)Applicant. v Respondent (1) State or Union Territory and the Collectorate from which the application is filed. (2) Number of appeal which gives rise. to the reference. (3) Address to which notices may be sent to the applicant. (4) Address to which notices may be sent to the respondent. (5) The appeal noted above was decided by the... Bench of the appellate Tribunal on (6)' The notice of the order under S.35C of the Central Excises and Salt Act. to the reference. (3) Address to which notices may be sent to the applicant. (4) Address to which notices may be sent to the respondent. (5) The appeal noted above was decided by the... Bench of the appellate Tribunal on (6)' The notice of the order under S.35C of the Central Excises and Salt Act. 1944 was served on the applicant on.' (7) The facts which are admitted and/or or found by the appellate Tribunal and which are necessary for drawing up a statement of the case. are stated in the enclosure for ready reference. (S) The following questions of law arise out of the order of the appellate Tribunal. 1.2. 3 etc. (9) The applicant. therefore. requires under sub section (1) of S.35G of the Central Excises and Salt Act. 1944 that a statement of the case be drawn up and the questions of law referred to in paragraph 8 above be referred to the High Court. (10) The documents or copies thereof specified below (the translation in English of the documents. where necessary. is annexed) be forwarded to the High Court with the statement of the case. Signature of the authorised Signature of the representative. if any. applicant. Verification I applicant do hereby declare that what is stated above is true to the best of my information and belief. Verified today. the day of 19.... Signature of the authorised Signature of the representative. if any. applicant. Notes: 1. The application and form of verification shall be signed by the applicant in accordance w»h the provisions of R.213 of the Central Excise Rules. 1944. 2. The application shall be filed in triplicate. 3. The fee of Rs.200/- required to be paid under the provisions of the Act shall be paid through acrossed bank draft drawn in favour of the Assistant Registrar of the Bench of the Tribunal on a branch of any nationalised bank located at the place where the Bench is situated and the demand draft shall be attached to the form of reference application." 4. We are of the view that under S.35G(1) of the Act. the petitioner should have filed the application in the prescribed form. requiring the appellate Tribunal to refer to the High Court any question of law arising out of the order of the appellate Tribunal. If the said application is rejected. We are of the view that under S.35G(1) of the Act. the petitioner should have filed the application in the prescribed form. requiring the appellate Tribunal to refer to the High Court any question of law arising out of the order of the appellate Tribunal. If the said application is rejected. the petitioner has got a remedy under S.35G(3) of the Act to apply to this Court and this Court can direct the appellate Tribunal to refer the questions of law. if it is satisfied that the questions of law do arise out of the order of the appellate Tribunal. R.218 (1) of the Central Excise Rules read with R.218(3) requires the application under S.35G(1) of the Act to be filed in Form No.E.A.6. Columns 8 and 9 of Form No.E.A.6 are important. In column 8. the questions of law. which according to the petitioner/ applicant arise out of the order of the appellate Tribunal. should be specifically formulated. It is only those questions which the applicant can require the appellate Tribunal to refer to this Court under Column 9. Only in case the applicant or petitioner has required the appellate Tribunal under S.35G(1) read with R.218(1) and (3) to refer the questions of law formulated as is required in the prescribed form and the Tribunal refuses to refer any question of law. the applicant/ petitioner can approach this Court under S.35G(3) of the Act. The petitioner has not complied. in substance and in form. with S.35G(1) read with R.218(1) and (3) and has totally failed to formulate any question of law as is required in column 8 in Form No.E.A.6. In such circumstances. it is not proper for this court to formulate any question of law and direct the appellate Tribunal to refer those questions. Dealing with the similar provisions in the Incometax Act a Bench of the Punjab High Court. in Swam/ & Co. v. Commissioner of Incometax (20 ITR 601) at pages 604 and 605. observed thus: "Now. questions of law arising out of the order of the Tribunal are to be set forth in para No.4 of the Reference Application and in para.5 of that application the applicant has to set forth which out of the questions of law arising out of the order of the Tribunal are to be referred to the High Court for decision. questions of law arising out of the order of the Tribunal are to be set forth in para No.4 of the Reference Application and in para.5 of that application the applicant has to set forth which out of the questions of law arising out of the order of the Tribunal are to be referred to the High Court for decision. From a perusal 'of Form R(T) - Form of S.66(1) Reference Application - it is plain that it was the duty of the assessee to set forth in the application the questions of law arising out of the order of the Tribunal which the assessee required under 'sub-section (1) of S.66 of the Act to be referred to the High Court. Clearly. an application under S.66(1) of the Act should specify the questions of law which the applicant considers ought to be referred for decision to the High Court. Directions under S.66(2) of the Act are in the nature of "mandamus" and as a general rule such directions will not be issued unless the Tribunal has known what it was that the Tribunal was required to do. so that the Tribunal had the opportunity of considering whether or not the Tribunal should comply. In other words. it must be shown by evidence that there was a distinct. demand of that which the party seeking the directions desires to enforce. and that such a demand was met by a refusal." The aforesaid decision of. the Punjab High Court has our full concurrence. In this connection. an earlier decision of the Bombay High Court in Narayan Atmaram Patkar v. Commr. of Incometax (2 ITR 486) also deserves mention. Delivering the judgment of the Bench. Beaumont. C.J., stated the law thus: "I think clearly open to this court on an application under sub-section (3) of S.66. to direct the Commissioner to refer some question other than that which the parlies have formulated. But generally 1 think the Court should be slow to go outside the question which the parties have themselves asked the Commissioner to state." But. in Narayan Atmaram Patkar's case (2 YTR4S6). atleast one question was formulated and what was sought to be argued was a different question. In this case. no question was formulated and the position is worse. 5. In the circumstances. we are of the view that this Original Petition. in Narayan Atmaram Patkar's case (2 YTR4S6). atleast one question was formulated and what was sought to be argued was a different question. In this case. no question was formulated and the position is worse. 5. In the circumstances. we are of the view that this Original Petition. filed under S.35G(3) of the Central Excises and Salt Act. in effect praying for the issue of a writ of mandamus compelling the Tribunal to refer certain questions of law for the decision of this Court. is ill-conceived and will not lie. 6. The Original Petition is dismissed.