COMMISSIONER OF CUSTOMS Vs. MOTISONS INTERNATIONAL

JUDGEMENT

(1.) THIS reference application has been filed by the Assistant Commissioner of Customs (Review Cell) against the Final Order of the Tribunal Nos. 2213 to 2216/97 dated 13.8.97.

(2.) THE learned counsel had raised a preliminary objection that the Assistant Commissioner cannot file a reference application, as the Commissioner cannot delegate his powers for filing the reference application under Section 35F of the Central Excise Act, which is analogous to Section 130(1) of the Customs Act. In this regard, the learned counsel relied on the judgment of Tribunal rendered in the case of CCE v. Indian Oil Corporation as , wherein it had been held that under Section 35G of the Central Excise Act, before reference to the High Court is made two conditions must be fulfilled. The application should be filed either by the Collector of Central Excise or by the other party within a period of sixty days from the date of the receipt of 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 noted that in the instant case, neither the application has been filed by the Collector of Central Excise nor this is an order which does not relate among other things to the determination of any question having a relation to the rate of duty of excise. Therefore, the Tribunal held that as both the conditions are not fulfilled hence the reference application is not maintainable in law. A similar view was expressed by the Tribunal in the case of CCE v. AIR Conditioning Corporation Ltd. by the Bench of Three Members as . The Tribunal again reiterated this view in the case of CCE v. Kesharwani Zarda Bhandar as . The matter had been adjourned to enable them to go through these judgments and make their submissions. The matter has again come up for consideration. The learned advocate again refers to all these three judgments and relied on the same.

(3.) HEARD learned DR, who files a memo alongwith a copy of letter addressed to him by the Assistant Commissioner (Review Cell) only points out that the judgments pertaining to Section 35 of the Central Excise and Salt Act and while the applications have been filed under Section 130(1) of the Customs Act. The learned DR submits that since there is an authorisation of Commissioner in the matter, that itself is sufficient for the purpose of considering the reference application.