AUROTRANS MARITIME SERVICES (P) Vs. COMMR. OF CUS.

JUDGEMENT

(1.) THIS is a reference application filed by the Commissioner for reference of the matter to the Hon'ble High Court in terms of questions raised therein.

(2.) LD . Consultant raises preliminary objection on the ground that Commissioner of Customs cannot delegate and authorise the responsibility to the Asst. Commissioner to file the reference application in terms of Section 130(1) of the Customs Act as there is no provision under the said section granting powers to the Commissioner to authorise for filing of the reference application through the Asst. Commissioner.

(3.) IT is his contention that the reference application has to be signed by the Commissioner himself and in this regard he relies on the judgment rendered by the Tribunal in the case of C.C.E. v. Indian Oil Corporation reported in 1985 (20) E.L.T. 368 wherein it has been held that under Section 35G of the Central Excise Act before reference to the High Court is made, two conditidns must be fulfilled. An application should be filed either by the Commissioner of Central Excise or by the other party within a period of 60 days from the date of receipt of the order and the order should not be an order relating among other things, to the determination to the rate of duty of excise or to the value of goods for the purpose of assessment. The Tribunal also noted that the application has not been filed by the Collector and that the order also did not relate among other things to the determination of any question having a relation to the rate of duty of excise. Therefore, the Tribunal findings that the cenditions as laid down in the said section not having been fulfilled, therefore held the reference application to be not maintainable. Similar view has been expressed by the Tribunal in the case of C.C.E. v. Air Conditioning Corporation Ltd.. as reported in 1994 (70) E.L.T. 405. Again, the same view has been reiterated in the case of C.C.E. v. Kesharwani Zarda Bhandar as reported in 1995 (75) E.L.T. 651 (T).