1997 (11) TMI 241 - AT - Central Excise

Tribunal dismisses department's reference application on duty refund claim, highlighting limited scope under Section 35G.

The Tribunal rejected the department's reference application concerning a refund claim, emphasizing that it did not raise a significant point of law for ... Reference to High Court - Issues:1. Whether a refund claim can be granted without finalization of classification dispute and following proper procedure under Section 35 of the Act.Analysis:The Appellate Tribunal received a Reference Application from the department regarding the question of law arising from Final Order No. 522/97-D in Appeal No. E/4419/89-D. The department argued that the refund claim cannot be granted without finalization of the classification dispute and without following the proper procedure under Section 35 of the Act. The department highlighted that the Supreme Court's decision in a previous case is not applicable in this context and that the assessee did not challenge the decision before the Commissioner (Appeals) as per Section 35 of the Act.It was noted that both the department and the assessee have the right to challenge classification issues, either through a notice under Section 11A or by filing a refund under Section 11B of the Act. The Tribunal opined that the matter at hand did not raise a significant point of law warranting referral to the High Court. Additionally, it was clarified that under Section 35G of the Act, a reference lies only concerning matters not related to the determination of questions regarding the rate of duty or the value of goods for assessment purposes. Since the rate of duty was a key aspect in this case, the Tribunal rejected the department's reference application.In a concurring opinion, another Member of the Tribunal expressed dissatisfaction with how the Collector had initiated the reference. It was emphasized that the Collector should not assess the propriety, legality, or correctness of the Tribunal's order. The Member highlighted the appropriate procedures for challenging Tribunal orders and the criteria for making references to the High Court under Section 35G. It was suggested that senior officers, including Collectors, should have a better understanding of the provisions of the Act and exercise discretion when making applications under Section 35G.