1988 (7) TMI 195 - AT - Central Excise

Tribunal dismisses Reference Application under Section 35G(1) for duty rate determination. Delay condonation denied.

WEST COAST PAPER MILLS LTD. Versus COLLECTOR OF C. EX.

The Tribunal dismissed the Reference Application under Section 35G(1) of the Central Excises and Salt Act, 1944, as it related to the determination of the ... Condonation of delay not sustainable if the delay in filing is more than 30 days Issues Involved:1. Maintainability of the Reference Application under Section 35G(1) of the Central Excises and Salt Act, 1944.2. Condonation of delay in filing the Reference Application.Detailed Analysis:1. Maintainability of the Reference Application under Section 35G(1) of the Central Excises and Salt Act, 1944The primary issue in this case is whether the Reference Application filed by the applicant is maintainable under Section 35G(1) of the Central Excises and Salt Act, 1944. The applicants contended that the Tribunal's order involved important questions of law and requested the Tribunal to refer these questions to the High Court of Karnataka.The Tribunal examined the nature of the questions raised by the applicants and found that the issues pertained to the determination of the value of goods for the purpose of assessment, specifically the inclusion of the value of wrapping paper in the value of wrapped paper. The Tribunal referenced its previous decisions, including the case of Gwalior Rayon Silk and Manufacturing Co. Ltd. v. Collector of Central Excise, Cochin, and Orient Paper Mills v. C.C.E. Calcutta, which established that the full cost of wrapping paper, including any excise duty, should be included in the value of the wrapping paper for excise duty purposes.The Tribunal concluded that the matter indeed related to the determination of questions having a relation to the rate of duty or value of goods for assessment purposes. Therefore, following the precedent set in Union Carbide India Limited v. Collector of Customs, Calcutta, the Tribunal held that a reference to the High Court was not admissible if the question related to the rate of duty or value of goods for assessment purposes. Consequently, the Tribunal dismissed the Reference Application under Section 35G(1) of the Central Excises and Salt Act, 1944.2. Condonation of Delay in Filing the Reference ApplicationThe second issue addressed was whether the delay in filing the Reference Application could be condoned. The applicants received the Tribunal's order on 3-12-1987 and were required to file the Reference Application within 60 days, i.e., by 2-2-1988. The application was filed on 17-3-1988, exceeding the stipulated period by more than 30 days.The Tribunal noted that under the proviso to Section 35G(1), it is competent to condone a delay not exceeding 30 days if the applicant shows sufficient cause for the delay. However, in this case, the delay exceeded the permissible limit, and the applicants failed to provide a sufficient cause for the delay, citing vague reasons such as continuous operational problems.The applicants relied on the Supreme Court decision in Mangu Ram v. Municipal Corporation of Delhi, arguing that the Tribunal could condone the delay under Section 5 of the Limitation Act, 1963. However, the Tribunal distinguished this case, noting that the Supreme Court's decision was based on the provisions of the repealed Code of Criminal Procedure, 1898, and not applicable to the present case.The Tribunal further elaborated that Section 5 of the Limitation Act, 1963, does not apply to the Reference Application filed under Section 35G of the Central Excises and Salt Act, 1944. The Tribunal cited the Gujarat High Court's decision in Dineshbhai v. Kripalu Co-op. Housing Society and the Supreme Court's decision in Commissioner of Sales Tax U.P. Lucknow v. Parson Tools & Plants, Kanpur, which held that where a special or local law prescribes a specific period of limitation and provides for limited condonation, Section 5 of the Limitation Act cannot be applied.The Tribunal concluded that it was not empowered to condone the delay beyond 30 days as per the proviso to Section 35G(1) and rejected the application for condonation of delay.ConclusionThe Tribunal dismissed both the Reference Application and the application for condonation of delay. It held that the Reference Application was not maintainable under Section 35G(1) of the Central Excises and Salt Act, 1944, as it related to the determination of the rate of duty or value of goods for assessment purposes. Additionally, the Tribunal rejected the application for condonation of delay, stating that it lacked the authority to condone delays exceeding 30 days and that the applicants failed to show sufficient cause for the delay.