UNION OF INDIA Vs. PRECITEX RUBBER INDUSTRIES LTD

JUDGEMENT

(1.) THIS is an application under Section 35h of the Central Excise Act, 1944 (for short 'the Act')

(2.) RESPONDENT No. 1 carries the business of manufacture of synthetic rubber products. The Additional Commissioner, Central Excise, Indore issued a show cause notice dated 12-3-1998 to the respondent No. l under Section 11a of the Central Excise Act, 1944 and thereafter passed an order of adjudication dated 31-3-1999 under the said Section 11a of the Act. Aggrieved respondent No. 1 filed an appeal before the Commissioner (Appeals) who by his order dated 29-9-2000 confirmed the order of the Additional Commissioner, Central Excise, Indore. Respondent No. 1 then filed an appeal before the Customs Excise and Gold (Control) Appellate Tribunal, West Regional Bench at Mumbai and by order dated 11-11-2002, the Tribunal accepted the contention of the respondent that the notice issued and adjudicated upon by the Additional Commissioner suffers from want of jurisdiction and was bad in law and allowed the appeal with consequential relief. Aggrieved by the said order dated 11-11-2002, the Revenue has filed this application under Section 35h of the Act praying for direction to the Appellate Tribunal to refer the following question of law: Whether the Additional Commissioner is competent to issue show cause notice and adjudicate the same for recovery of duty under proviso to Section 11a1 of the Central Excise Act, 1944 on or after 13-8-1997 i. e. the date when Central Board of Excise and Customs has issued its Circular No. 328/44/97-CX dated 13-8-1997 whereby Additional Commissioner was granted the power to adjudicate the cases involving fraud, mis-statement, suppression of facts etc. upto the limit of duty of Rs. 20 lakhs?

(3.) PURSUANT to notice issued on this application, respondent No. l has appeared through his counsel Mr. D. K. Subedar and has raised some preliminary objection with regard to maintainability of the application. Mr. Subedar submitted that the order of the Appellate Tribunal dated 11-11-2002 is an order relating, among other things, to the determination of a question having relation to rate of duty of excise or to the value of goods for the purpose of assessment and therefore an appeal would lie under Section 35l of the Act to the Supreme Court and this reference application under Section 35h is misconceived. Mr. Vinay Zelawat, on the other hand, submitted that the impugned order of the Appellate Tribunal is not an order relating to determination of a question having relation to rate of excise duty or to the value of goods.