Referable question of law not made out where the dispute turned on evidence and notional production norms.

No referable question of law arose under Section 35H of the Central Excise Act where the Tribunal's reference to Rule 173E of the Central Excise Rules was only illustrative. The Tribunal did not find that the Commissioner had actually exercised power under Rule 173E; instead, it rejected the Department's notional production formula because the record and evidence were inconsistent. The analysis confirmed that the decision did not interfere with the statutory power to fix production norms, but turned on the facts and materials on record. The challenge therefore failed.

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Issues: Whether a question of law arose for reference under Section 35H of the Central Excise Act, 1944 in the context of the Tribunal's decision relating to Rule 173E of the Central Excise Rules, 1944.

Analysis: The proposed question was found not to be the real controversy. The Tribunal had referred to Rule 173E only to explain that the Department's reliance on a notional production formula would amount to applying that rule, but there was no material to show that the Commissioner had in fact exercised power under Rule 173E in the case. The Tribunal's decision turned on the evidentiary inconsistency between the records and did not interfere with the statutory power to fix production norms.

Conclusion: No referable question of law arose, and the challenge failed.

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