CCE Vs. HINDUSTAN LEVER LTD.

JUDGEMENT

(1.) THIS application has been filed seeking to refer the questions in paragraph 8 of the EA6 form to the jurisdictional High Court for its opinion. The assessee respondent is carrying on business at Sewree, Mumbai, has filed a refund claim on account of classification dispute of hardened oil which was captively consumed in the manufacture of nickel catalyst within the factory and not cleared as final product. However the product hardened oil is used in the manufacture of final product, duty elements paid on the said product have been included while arriving at the wholesale price of the final product and as such the burden of duty element has been passed on to their customers/buyers. It resulted in issuance of show cause notice and the order -in -original passed by the Assistant Commissioner rejecting the claim for refund. Against the said order the assessee filed an appeal before the Collector (Appeals) who by his order dated 13.10.1993 followed the judgment of the Bombay High Court in the case of Solar Pesticides v. UOI : 1992 (57) ELT 201 :, 1994 (50) ECR 7 (Bom). When the matter came up before the Tribunal by order dated 1.3.1999. 1 dismissed the appeal of the department as at that time the Bombay High Court judgment was still holding the field.

(2.) APPEALS to the Tribunal are filed under section 35B of the Central Excise Act. In terms of section 35C of the Act the appellate Tribunal may pass such orders thereon as it does fit, either confirming or modifying the decision or order appealed against. When the appellate Tribunal passed orders in terms of section 35C if there is any question of law arises either the Collector or the other party may within 60 days of the date upon which such a person is waived the notice of an order under section 35C may file an application for making statement of the case to the High Court for its opinion. If the Tribunal makes a statement of the case in terms of sub -section (3) of section 35G, the case may be heard by two judges of the Hon'ble High Court in terms of section 35J of the Act. On passing the judgment thereon by the High Court the copy of the judgment shall be sent with the seal of the court and the appellate Tribunal shall pass such orders as are necessary to dispose of with the case in conformity with such judgment.

(3.) HERE the question that arises is whether the questions posed for reference to the High Court is necessary or not. The Central Excise Act tries to follow more or less a scheme of the Income -tax Act, 1922. It is true that the schemes of Income -tax Act and Central Excise Act may not be identical in toto, for example section 35L of the Central Excise Act where there is a provision for filing of an appeal directly to the Supreme Court by any order passed by the Appellate Tribunal relating among other things to the determination of any question having relation to the rate of duty of excise or value of goods for purpose of assessment. This type of provision is absent in Income -tax Act but even then making a statement of the case for opinion of the High Court and Supreme Court is identical in nature under both Acts.