Reference under Section 35G fails when filed by a subordinate officer and the dispute concerns rate of duty exclusion.

A reference application under Section 35G of the Central Excises and Salt Act, 1944 must be filed by the Collector of Central Excise or the other party; an Assistant Collector has no implied authority to do so in the absence of express statutory delegation, so the application was incompetent. The provision also excludes orders relating to determination of the rate of duty or valuation, and an erroneous refund arising from rate-of-duty determination falls within that exclusion, so no reference lay to the High Court. Such matters were treated as fit for appeal to the Supreme Court instead.

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Issues: (i) Whether a reference application under Section 35G of the Central Excises and Salt Act, 1944 is maintainable when filed by the Assistant Collector instead of the Collector of Central Excise. (ii) Whether an order concerning erroneous refund arising from determination of the rate of duty is an order against which a reference lies to the High Court under Section 35G of the Central Excises and Salt Act, 1944.

Issue (i): Whether a reference application under Section 35G of the Central Excises and Salt Act, 1944 is maintainable when filed by the Assistant Collector instead of the Collector of Central Excise.

Analysis: Section 35G specifically permits filing of a reference application only by the Collector of Central Excise or the other party. The Act and the Central Excise Rules, 1944 did not confer any authority deeming the Assistant Collector to be the Collector for this purpose, nor did they provide a delegation mechanism comparable to Section 35B(2) of the Central Excises and Salt Act, 1944. In the absence of express statutory authorization, the application filed by a subordinate officer could not be treated as one filed by the Collector.

Conclusion: The reference application was not maintainable on this ground and was rejected.

Issue (ii): Whether an order concerning erroneous refund arising from determination of the rate of duty is an order against which a reference lies to the High Court under Section 35G of the Central Excises and Salt Act, 1944.

Analysis: Section 35G excludes orders relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for assessment. The refund and the consequent demand of erroneous refund in the present matter flowed from a determination on the rate of duty, and the Tribunal treated such matters as falling within the excluded category. The proper remedy in such cases was an appeal to the Supreme Court rather than a reference to the High Court.

Conclusion: The order was one relating to the rate of duty, so no reference lay to the High Court under Section 35G.

Final Conclusion: The Tribunal refused to refer the question of law because the application was incompetent and the underlying order fell within the statutory exclusion from reference jurisdiction.

Ratio Decidendi: A reference under Section 35G of the Central Excises and Salt Act, 1944 is competent only when filed by the Collector of Central Excise or the other party and only in respect of orders not relating to the rate of duty or valuation; absent express delegation, a subordinate officer cannot invoke that jurisdiction.

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