1. The petitioners M/s. K.C.P. Limited, Vuyyuru, A.P.' cleared during the period 10-12-1976 to 18-1-1977, levy sugar of 1975-76 season paying duty on the higher price of Rs. 150.40 fixed by an interim order delivered earlier by the Andhra Pradesh High Court, against the price fixed by the Govt. of India viz., Rs. 142.54 apparently ignorant of the vacation of the interim order consequent to dismissal of the writ petition filed by them. They filed a claim for consequential refund of duty which was received by the Sector Officer on 20-9-1977 which was received ultimately in the Office of the Assistant Collector, Vijayawada Division on 3-12-1977. The Assistant Collector rejected the claim on the ground that it was time-barred under Rule 11 of the Central Excise Rules, 1944, as it stood after amendment by the Central Excise Notification No. 267 dated 6-8-1977 on the date of receipt of the claim by him in December, 1977 vide his order C. No. V(i)207/80 MP 2 dated 16-1-1982 (Annexure A).
2. On appeal against the above order, the Appellate Collector of Central Excise, Madras, in his order No. 195/82(G) dated 28-6-1982 (Annexure B) observed : "In a case where an assessee is required to pay duty and show-cause notice was issued prior to 6-8-77, the legal rights of the Department under the old Rule 10 of Central Excise Rules, 1944 are not extinguished and the competent authority can confirm the pending demands within the period of one year under the repealed Rule 10 read with old Rule 173-J. This is on account of the fact that the rights, obligations and liabilities acquired, accrued or incurred under the repealed Rule 10 and old Rule 173-3 would stand. Similarly such rights of the State are equally available to citizens or assessee and accordingly the normal time limit of one year under the repealed Rule 11 read with old Rule 173-3 is available to the appellants. The refund application received by Assistant Collector on 3-12-1977 for the amounts paid during 10-12-1976 to 18-1-1977 is well within time and not hit by limitation." The Appellate Collector set aside the order of the Assistant Collector and allowed the appeal with consequential relief to the applicants.
3. Against the above order of the Appellate Collector, the Collector of Central Excise, Guntur, appealed to this Tribunal. By its detailed order No. ED(MAS) 24/82 dated 26-9-1983 (Annexure C), the Tribunal allowed the appeal, set aside the order of the Appellate Collector and restored the order C. No. V/l/2/7/80 MP2 dated 16-1-1982 of the Assistant Collector. The Applicants have filed this application under Section 35G of the Central Excises and Salt Act for making a reference on the following points of law : 1. Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the amended Rules 11 and 1733 as they stood from 6-8-1977 would be applicable to the application of the assessee for refund of Rs. 15,254.28 and that the said application would have to be disposed of according to the said Rules as they stood at the time of making the application.
2. On the facts and in the circumstances of the case, whether the authorities constituted under the Act including the Tribunal has no power to refund or direct refund as claimed by the assessee.
4. Taking the second point first, it is seen that a Division Bench of the Madras High Court has already decided in a similar case of Premraj and Ganapatraj & Co. P. Limited v. Asstt. Collector of Customs, Madras AIR 1978 Madras 40 and is therefore, now a settled law. No reference is therefore, made on this point.
5. Regarding the first point, the following question of law which arises from the Tribunal's order is referred to the Honourable High Court of Judicature, Andhra Pradesh at Hyderabad :- (i) the repealed Rule 11 read with old Rule 1733 of the Central Excise Rules, 1944 will apply with the right to claim refund arising from the date of payment of duty; or (ii) the amended Rule 11 which came into effect from 6-8-1977 will apply with reference to the date on which a claim for refund of duty was made, i.e., after 6-8-1977.