1. The applicants have proposed the following alleged questions of law said to have arisen out of Order No. 434/88-D dated 14.6.88 passed by this Tribunal in A. No. E/2265/83-D with a request that the same may be referred to the Hon'ble High Court of Delhi for consideration under Section 35G of the Central Excises and Salt Act, 1944 - (a) Whether the Applicant Board is State within the meaning of Article 12 of the Constitution of India only for the purposes of the said Constitution and not for the purposes of the other laws of the land? (b) Whether the Applicant Board is State within the meaning of Article 12 of the Constitution of India only for the purposes of the Parts III and IV of the Constitution or for all purposes whatsoever? (c) Whether on true interpretation of the provisions of Sections 5, 9, 60, 61, 62 and 78A of Electricity Supply Act, 1948 the Applicant Board forms a part and parcel of the State of Haryana? (d) Whether on a true interpretation of the provisions of the Notification No. 57 of 1975 the Applicant Board is entitled to the benefit of the exemption from levy of excise duty on the footing that it is State within the meaning of the provisions of Article 12 of the Constitution of India? (e) Whether the provisions of the Excise Act and the Rules framed thereunder have to be applied subject to, and so over-riden by, the provisions of Article 12 of the Constitution of India and accepting the Applicant Board as State? (f) Whether the Assistant Collector of Central Excise, Ambala had jurisdiction to issue show cause notice dated 21st Dec., 1982 to the Applicant Board requiring it to show cause to the Collector of Central Excise, Delhi when the latter had neither applied his mind nor directed the said Assistant Collector to issue the said show cause notice? (g) Whether the Appellate Collector of Central Excise, Delhi had jurisdiction to adjudicate upon the said show cause notice dated 21st December, 1982 when he had neither applied his mind before its issue nor had himself issued the same? (h) Whether it constitutes double taxation to impose excise duty on an assembled transformer when excise duty had already been paid on each one of the components of the transformer which were specifically got fabricated from the suppliers for that purpose and the transformer was merely assembled by the Applicant and no manufacture as such was involved? (i) Whether the Applicant Board is entitled to exemption from levy of excise duty in terms of Notification No. 118 of 1975 in respect of the goods falling under Item No. 68 which are manufactured in the factory of the Applicant and are intended for use in the factory of the Applicant Board in which they are manufactured or in any other factory of the Applicant Board? (j) Whether the term 'factory' of the Applicant Board comprises of its total electrical system including its transmission lines? (k) Whether there is any clearance of the transformer as contemplated by the provisions of the Central Excise Act when the assembled transformer is moved from one part of the total system of the Applicant Board to any other part of its system and whether the transmission system of the Applicant Board forms a part and parcel of it& factory? 2. Brief facts of the case leading to the present application and as found by this Tribunal are as follows- "1. Under notice dated 21-12-1982 M/s. Haryana State Electricity Board, Dhulkote, Ambala City was intimated that during the period 1.2.1981 to 30.8.1982 they had manufactured and cleared a total number of 1602 transformers (classifiable under Item 68-CET) without payment of Central Excise duty and without observance of Central Excise formalities and they were, therefore, to show cause why duty thereon should not be demanded and penalty also imposed. Under their reply thereto dated 14.1.1983 they deposited the duty demanded (Rs. 18,73,669.47 paise) immediately but sought for a personal hearing so that they may make their submissions, in reply to the notice. After affording a personal hearing the Collector under his order dated 29.7.1983 confirmed the duty demand and further imposed a penalty of Rs. 10,000/-." 3. Against the said Order the appellants filed their Appeal No.E/2265/83-D before this Tribunal, which was disposed of by the Tribunal vide its Order No. 434/88-D dated 14.6.1988 in the following terms - "13. In the result we uphold the order of the Collector as to the excisability of the goods in issue but modify his order by setting aside the penalty and confining the demand for duty to the period of six months preceding the date of service of the show cause notice and further directing that in quantifying the duty, benefit under Notification No. 201/79 to the extent permissible, on the evidence that may be produced, ought to be granted. The matter shall accordingly be remitted to the Collector for passing fresh order in the light of the directions supra." 4. We have heard Dr. R.K.Mehra, learned Counsel for the appellants and Shri L.C. Chakraborthy, learned Departmental Representative for the respondent.
5. At the outset Shri L. C. Chakraborthy, learned Departmental Representative submitted that the present Reference Application is not maintainable inasmuch as all the questions posed by the applicants are inseparably connected with the question of rate of duty. To substantiate his contention he drew our attention to Sub-section (1) of Sec. 35G of the Central Excises and Salt Act, 1944 and also cited the case of Gopaldass JagatRam Pvt. Ltd. v. Collector of Central Excise, 1984 (18) ELT 669. In reply Dr. R. K. Mehra, learned Counsel for the applicants submitted that for excluding the Reference Application under Sub-section (1) of Section 35G of the Act it is necessary that in the appeal question of rate of duty of excise must be involved and there must be actual determination of the rate of excise duty in the appeal.
He also drew our attention to the meaning of "rate of duty" as given in the Oxford Dictionary.
5A. Before we proceed to consider the rival contentions raised by the parties it would be advantageous to reproduce Sub-section (1) of Section 35G of the Central Excises and Salt Act, 1944, which runs thus- "35-G. Statement of case to High Court. - (1) The Collector 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 Sec. 35-C (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), by application in the prescribed form, accompanied, where the application is made by the other party, by a fee of two hundred rupees, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order, and subject to the other provisions contained in this section, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer it to the High Court: Provided that the Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period hereinbefore specified, allow it to be presented within a further period not exceeding thirty days." 6. From a plain reading of the said sub-section it is clear that no Reference Application is maintainable where the Order passed by the Tribunal under Sec. 35C of the Act relates, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment. It may be stated that the reason for excluding the Reference Application where the Order relates, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment is apparent for, Sec. 35L(b) makes provisions for an appeal direct to the Supreme Court against such Orders, that is to say, any order passed by this Tribunal relating, among other things, to the determination of any question having a relation to the rate of excise duty or to the value of goods for purposes of assessment. The phrase "any question having a relation to the rate of duty of excise" is of wide import. In the case of State Waqf Board, Madras v. Abdul Azeez Sahib, AIR 1968 Mad. 79 it was stated that the words "relating to or in relation to" are words of comprehensiveness which might both have a direct significance as well as an indirect significance, depending on the contest. They are not" words of restrictive content and ought not to be so construed. Adopting this meaning this Tribunal in the case of Shri Niwas Steels Ltd. v.Collector of Central Excise, 1985 (19) ELT233held that in the light of the said meaning is the true meaning and import of the term "an order relating to the determination of any question having relation to the rate of duty of excise" can be properly understood only when the Order is read not in isolation but alongwith pleadings in the case. Having so read it was further held that there could be no doubt that the question relating to interpretation of Rule S6A of the Central Excise Rules and Notification No. 144/75-C.E., dated 7.6.1975 would be a question relating to rate of duty of excise. Same view was taken by this Tribunal in the case of Union Carbide India Ltd.,Calcutta v. Collector of Customs, Calcutta, 1984 (18) ELT 449 wherein after referring to the various authorities on the point it was held that the words "an order relating to" occurring in Sections 129-C(b), 129-C(3), 579,130(1), 130-E(b) [which are in pan materia with Section 35-C of the Central Excises and Salt Act] mean "an order standing in some relation to" or "an order concerning or pertaining" to the determination of any question relating to rate of duty of customs or to the value of goods for assessment and not "an order whose dominant purpose or theme is the determination of the aforesaid issues. Following this judgment the Tribunal reiterated the same view in the case of Anil Starch Products Ltd. v. Collector of Central Excise,Bhikusa Papers v. Collector,Collector of Central Excise v. Indian Rare Earths Ltd., 1986 (23) ELT 503 this Tribunal further held that the words "having a relation to the rate of duty of excise or to the value of goods for purposes of assessment" are of wide importance and significance. Consequently even if the Tribunal had disposed of an appeal relating to the value of goods on the preliminary ground of Imitation, the question relating to the value of the goods for purposes of assessment, must be deemed to have been dealt with by the Tribunal in its order and, therefore, such an order would remain an order "having relation to the determination of the question having relation to the value of goods for purposes of assessment. That being so, no reference would lie to the High Court. In the case of Gopaldass Jagat Ram Pvt. Ltd. v. Collector of Central Excise, supra it was held that "if in a case the question for determination is whether a person is entitled to pay duty at the exemption rate of 10% or not, it cannot be anything but a question relating to rate of duty for purposes of assessment." it was further held that "the Notifications under which full or partial exemption was claimed by the appellants laid down numerous conditions of eligibility....These conditions had to be gone into to determine whether the appellants were eligible to avail of the exemption under these Notifications or not but the basic question still remained that of the appellant's entitlement to 'Nil' rate of duty/concessional rate of duty under these Notifications. Since Section 35G specifically bars reference to High Court in respect of any order "relating, among other things, to the determination of any question having relation to the rate of duty of excise or to the value of goods for purposes of assessment...we reject the application as not maintainable". In this case reliance was placed on a judgment of the Supreme Court rendered in the case of Orient Weaving Mills (P) Ltd. v.Union of India, 1978 ELT (J) 311 wherein it was observed that exemption Notifications modified the rate of duty.
7. We respectfully agree with the view expressed in the aforesaid decisions rendered by this Tribunal and would further like to add that the present appeal which has led to the filing of the instant Reference Application was heard by a Special Bench constituted by the President of the Tribunal for hearing such appeals in terms of subsection (2) of Section 35D of the Central Excises and Salt Act, 1944. The said section sofaras relevant for the purpose of this application is reproduced as below - (2) Every appeal against a decision or order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment, shall be heard by a Special Bench constituted by the President for hearing such appeals and such Bench shall consist of not less than two members and shall include at least one judicial member and one technical member.
8. From the above it is clear that whenever an appeal is filed against "a decision or order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment" such appeal is to be heard and decided by a Special Bench in terms of Sub-section (2) of Section 35-D of the Act. In the instant case since the appeal filed by the appellants/applicants was against a decision/order relating, among other things, to the determination of questions having a relation to the rate of duty of excise, it was heard' and decided by the Special Bench constituted by the President in terms of Sub-section (2) of Section 35-D of the Act. At no stage the appellants/applicants challenged the jurisdiction of the Special Bench. On the other hand they submitted to the jurisdiction of the Special Bench and obtained the judgment. That being so, the appellants/applicants after having submitted to the jurisdiction of the Special Bench and obtained the decision (though not favourable) cannot now say that the questions of law proposed by them do not relate, among other things, to the determination of any question having a relation to the rate of duty of excise for purposes of assessment.
9. In the result, after taking into consideration the overall picture of the case and the Order No. 434/88-D dated 14-6-1988 under reference passed by this Tribunal alongwith the pleadings in the case, we have no hesitation in holding that the proposed questions of law relate, among other things, to the determination of questions having a relation to the rate of duty of excise and, therefore, not referrable to the High Court in terms of Section 35G of the Central Excises and Salt Act, 1944. Consequently, the Reference Application in hand is rejected being not maintainable.