TaxTMI 
TaxTMI 
2009 (5) TMI 13
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....puted that the appellant on or about 22nd January, 1991 informed the Section Officer of the Central Excise, Roorkee that it had been manufacturing M.S. conduit pipes and its production is exempt from payment of Excise Duty in terms of Notification No.202/98-CE dated 20th May, 1988. It, furthermore, appears from the letters addressed by the appellant to the Superintendent, Customs and Central Excise, Rishikesh dated 29th April, 1991 and the Superintendent, Preventive and Intelligence Branch, Central Excise Division, Saharanpur dated 6th June, 1991 that the officers of the Central Excise Department had been visiting the appellant's factory for inspection of their factory. 4. Indisputably again the appellant submitted its production and raw material register for inspection. However, by a notice dated 12th August, 1992 the appellant was directed to file a declaration under Rule 174 of the Central Excise Rules, 1944 (for short `the Rules') for the purpose of claiming exemption from licensing control. 5. However, a show cause notice was issued on or about 28th March, 1994, proposing demand of Central Excise Duty of Rs.57,80,363/- under Section 11A of the Central Excise Act, 1944 (f....
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.... allowed treating the same to be a Reference in terms of old Section 35-G of the Act. 11. The short questions which arise for our consideration are:- i) Whether the said Reference was maintainable; and ii) Whether in the facts and circumstances of this case the extended period of limitation was applicable. 12. Before, however, adverting to said questions, we may notice that the Commissioner of Central Excise, Meerut sought to make the reference to the High Court stating :- " The order passed by the Hon'ble Tribunal does not appear to be legal and correct in so far as it relates to holding that the demand w.e.f. 22.01.1991 is time barred in view of the following submissions. While arriving at above and observation, Hon'ble CESTAT observed that when the party vide their letter 22.01.1991 requested the department for certificate to the effect that their product is exempt from duty, the department had thus acquired the knowledge on receipt of this letter and accordingly charges of suppression of facts stopped w.e.f. 22.01.1991 whereas the total period involved in the SCN is w.e.f. 26.03.1990 to 31.03.1991 and the SCN was issued on 28.03.1994. It is observed that....
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....things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. (2) The Commissioner of Central Excise or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be-- (a) filed within one hundred and eighty days from the date on which the order appealed against is received by the Commissioner of Central Excise or the other party; (b) accompanied by a fee of two hundred rupees where such appeal is filed by the other party; (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved." 15. We may also notice the provisions of Section 35-G of the Act, as it prior to its amendment : "35G. Statement of case to High Court.-- (1) The Commissioner of Central Excise or the other party may, within sixty days of the date upon which he is served with notice of an order under section 35C passed before the 1st day of July, 1999 (not being an order relating, among ot....
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....o, the fee, if any, paid by him, shall be refunded" 16. The order of the Tribunal having been passed on 3rd March, 2005 an appeal was maintainable to the High Court in terms of the substituted provision and not a reference. Whereas a reference could be made on a question of law, Section 35G of the Act, as it stands, provides for an appeal on a substantial question of law. Such a question of law is required to be formulated by the High Court itself. Even otherwise the question of law purported to have been referred to by the learned Commissioner of Central Excise would have been maintainable provided a substantial question of law arose for consideration of the High Court and not otherwise. 17. Whether non furnishing of information was willful and would amount to suppression of material fact in terms whereof the extended period of limitation as provided for in Section 11-A of the Customs Act, 1944 could be invoked or not, in our opinion, was not a substantial question of law. The finding of fact arrived at by the Tribunal should have been treated to be final. It would be binding on the High Court while exercising its appellate jurisdiction. A `substantial question of law' would....