Commissioner of Central Excise,Chennai-II v. Customs
Case at a glance
Provisions considered
- Central Excise Act, 1944 s. 35H(1)
- Income Tax Act, 1961 ss. 256, 260(1)
Key paragraphs
- Para 88. Under Section 35L of the Act, the assessee can file an appeal to the Supreme Court against the advisory opinion of the High Court in the reference made under Section 35G or 35H of the Act. The reference under Section 35G is against the…
Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRASDate: 9.8.2005CoramTHE HONOURABLE MR. MARKANDEY KATJU, THE CHIEF JUSTICEandTHE HONOURABLE MR. JUSTICE F.M.IBRAHIM KALIFULLAReference Case Petition No.49 of 2002 Commissioner of Central Excise, Chennai-II... Applicantversus1. Customs, Excise & Gold (Control) Appellate Tribunal, South Zonal Bench, Chennai, 1st Floor, Shastri Bhavan Annexure, 26, Haddows Road, Chennai-600 006.
M/s. Addison & Co. 803, Anna Salai, Chennai-600 002... RespondentsReference Application filed under Section 35H(1) of the CentralExcise Act, 1944 against the final order No.126/2002 dated 5.2.2002passed by the Customs Excise & Gold (Control)Appellate Tribunal in the Appeal No.E/154/1994 filed by M/s. Addison & Co., Chennai orderNo.28/93 (M) (D) passed by the Collector of Central Excise (Appeals)Chennai dt.20.10.93, Order 18/AC/V/92 passed by the Asst. Collector of Central Excise Madras V Division dt. 27.10.92 order No.40/90 (M)passed by the Collector of Central Excise (Appeals) Chennai dt.21.2.90 order No.72/89 passed by the Asst. Collector of Central ExciseMadras V Division dt. 6.12.89.****for applicant : Mr. K.Veeraraghavan SCGSC. https://hcservices.ecourts.gov.in/hcservices/ for respondent 2: Mr. Krishna Srinivasanfor M/s. Ramasubramaniam AssociatesJUDGMENT(Judgment of the Court was delivered by The Honourable The Chief Justice)This Reference Case Petition by the Commissioner of CentralExcise, Chennai-II purports to have been filed under Section 35H(1) of the Central Excise Act, 1944 (hereinafter referred to as the 'Act'). 2. We have heard the learned counsel for the parties and perused the record.
In our opinion, this Reference Case Petition is totally misconceived and is liable to be rejected.
It may be mentioned that in this case the Customs, Excise and Gold (Control) Appellate Tribunal decided the assessee's appeal byorder dated 7.12.1996 under Section 35C of the Act. Against that order, the assessee filed a Reference Application under Section 35G(3)of the Act which was decided in the assessee's favour by the HighCourt on 23.11.2000 in R.C.No.1 of 1999. The consequential order was then passed by the Tribunal under Section 35K of the Act on 5.2.2002in conformity with the opinion of the High Court dated 23.11.2000. Itis against this order under Section 35K of the Act that the Departmenthas filed this Reference Case Petition.
It may be mentioned that when the High Court passes an order under Section 35K of the Act, this order is not really the final order, rather it is the opinion or advice which the High Court gives to the Tribunal under its advisory jurisdiction. The Tribunal is bound to follow this advice and then pass a final order in accordance with the advice or opinion of the High Court.
The position is analogous to that of the Income Tax Act, in which, on a reference under Section 256 of the Income Tax Act,1961 the High Court gives its opinion or advice, but thereafter, the matter goes back to the Income Tax Appellate Tribunal and the Tribunal passesa final order under Section 260 (1) of the Income Tax Act which is tobe in conformity with the opinion or advice given by the High Court.
Though the High Court's advice or opinion has to be complied with by the Tribunal, such advice or opinion is not the final order rather it is the subsequent order of the Tribunal which is the final order. https://hcservices.ecourts.gov.in/hcservices/
Under Section 35L of the Act, the assessee can file an appeal to the Supreme Court against the advisory opinion of the High Court in the reference made under Section 35G or 35H of the Act. The reference under Section 35G is against the order of the Tribunal passed under Section 35C but not the order under Section 35K. Thus, there is no provision for making a reference against an order of the Tribunalunder Section 35K of the Act. We are informed that against the opinion of the High Court given in the reference under Section 35G of the Act, an appeal has already been filed under Section 35L before the Supreme Court which is pending. Of course if the Supreme Courtreverses the opinion of the High Court in the reference then the Tribunal will have to pass another consequential order in conformity with the decision of the Supreme Court, but this reference petition is totally misconceived. It is accordingly dismissed. Sd/Asst. Registrar/true copy/Sub Asst. Registrar VuTo1.Customs, Excise & Gold (Control)Appellate Tribunal, South Zonal Bench, Chennai,1st Floor, Shastri BhavanAnnexure,26, Haddows Road, Chennai-600 006.2.The Collector of Central Excise (Appeals) Chennai. 3. The Asst. Collector of Central Excise Madras V Division. 4. The Commissioner of Central Excise Chennai II.+1cc to Mr.K.Veeraraghavan SCCG Sr 33521TEJ (CO)km/18.8. R.C.P.No.49 of 2002
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.