Procedural compliance for proforma credit under exemption notification denied where delayed forms were unexplained and no condonation existed.

Compliance with the procedure prescribed under Rule 56A was treated as a condition for proforma credit under Notification No. 95/79. Unexplained delay in filing the D.3 forms, with no provision for condonation, was regarded as non-observance of the prescribed procedure and enough to deny the concession. The Tribunal also had not decided whether Rule 56A(3) was directory or mandatory, so that question could not form the basis of a reference. On that reasoning, both proposed questions were held not to survive for reference and the reference application was rejected.

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Issues: (i) Whether the question as to whether Rule 56A(3) was directory or mandatory arose for reference. (ii) Whether non-observance of Rule 56A(3) read with Rule 173K disentitled the applicant to proforma credit under the notification and whether that question survived for reference.

Issue (i): The Tribunal had itself declined to pronounce upon whether the requirement under Rule 56A(3) was directory or mandatory. As that issue was not decided in the order sought to be referred, it could not form the basis of a reference.

Conclusion: The first question did not arise for reference.

Issue (ii): The concession under Notification No. 95/79 was subject to compliance with the procedure prescribed under Rule 56A. The delay in filing the D.3 forms was admitted and remained unexplained, and the Tribunal found no provision for condonation of such delay. In that setting, the non-observance of the prescribed procedure was treated as a failure to satisfy a condition of the exemption, so the issue was not fit for reference.

Conclusion: The applicant was not entitled to have the second question referred, and it did not survive for reference.

Final Conclusion: The reference application failed and was rejected, leaving the denial of the concession undisturbed.

Ratio Decidendi: Where a concession or exemption is made conditional upon compliance with a prescribed procedure, unexplained non-compliance with that procedure can justify denial of the benefit, and a question not actually decided by the Tribunal does not arise for reference.

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