Section 35G reference maintainable where refund dispute did not require fresh determination of duty rate or assessment value.

Section 35G is attracted only where the proceedings themselves require determination of a question relating to the rate of duty or value for assessment; a refund claim does not fall within that bar merely because it arises from an excise dispute, where classification was already settled and no fresh rate-of-duty issue arose. Section 11B was treated as procedural, so it applied to a refund claim filed after its commencement even though the duty had been paid earlier. The correspondence relied on was construed as capable of amounting to a valid protest, including on the classification dispute, and the reference was therefore maintainable.

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Issues: Whether a reference under section 35G was maintainable where the refund proceedings did not require any actual determination of rate of duty, whether section 11B applied retrospectively to a refund claim made after its commencement despite earlier payments, and whether the letters dated 2-2-1973 and 14-3-1973 constituted a valid protest covering the classification dispute and not merely valuation.

Analysis: The Reference Application was not barred merely because the refund claim arose out of an excise dispute. The decisive enquiry was whether the proceedings themselves required determination of any question having relation to the rate of duty. Since the classification issue had already been settled and the refund claim did not call for a fresh determination of the applicable rate of duty or the construction of competing tariff entries or an exemption notification, the bar under section 35G did not operate on that ground. The change brought by section 11B was treated as procedural, so its application to a refund petition filed after its commencement was not excluded by the fact that the duty had been paid earlier. On the protest question, the letters relied upon had to be construed as documents; the later letter expressly reserved the right to claim excess duty paid "in any manner", and the Tribunal's view that the protest extended to the classification dispute was treated as raising a question of law fit for reference.

Conclusion: A reference was maintainable. The questions relating to whether the correspondence constituted a protest under section 11B and whether that protest covered valuation only or also rate of duty were referred to the High Court. The challenge to the maintainability of the reference on the footing that the case necessarily involved determination of rate of duty was rejected.

Ratio Decidendi: Section 35G is attracted only when the proceedings actually require determination of a question having relation to the rate of duty or value for assessment; a purely procedural limitation issue, or a refund claim where classification is already settled and no fresh rate-of-duty question arises, does not by itself bar a reference.

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