S.C. Mohapatra, J.
1. This is an application under Section 35-G of the Central Excises and Salt Act, 1944 (hereinafter referred to as 'the Act') by the Collector of Central Excise. Despite valid service of notice, opposite party has not entered appearance.
2. Opposite party filed an application in form AL-4 prescribed under Rule 174 of the Central Excise Rules for a licence to manufacture Ferro Silicon/Charge Chromein its factory at Therumbal. On that basis licence in Form AL-4 was granted. When it came to notice of the Collector the factory had no industrial licence for producing charge Chrome as per Industries (Development Regulation) Act, 1981 (sic) Collector exercising' power under Rule 180 deleted 'Charge Chrome' from the licence in Form L-4 with effect from 1-7-1985. Against this order opposite party preferred an appeal in Customs, Excise and Gold (Control) Appellate Tribunal, Calcutta Bench. Appellate Tribunal restored the licence in respect of Charge Chrome on the finding that Collector has no jurisdiction to take cognizance in respect of violation of the provision of Industries (Development and Regulation) Act.
3. Collector filed an application under Section 35G of the Act for stating a case to this Court on the question of law arising out of the order as framed by the applicant. Questions of law as framed are as follows :
(1) 'Whether the factory should furnish information against Col. 6 of the Schedule of AL-4 application, the quantity of goods the factory is legally capable of producing with reference to the Registration Certificate and the productive capacity as mentioned in the Registration Certificate issued under Section 10 of the I.D.R.A.? Whether in the Col. provided in the R.T. 12 and R.T. 3 the factory is required to show the capacity which has been sanctioned by the competent authority? Whether non-declaration of correct information in A.L. 4, R.T. 12 and R.T. 3 amount to deliberate act of misdeclaration and suppression of material facts?
(2) Whether deleting Charge Chrome (one item) in the licence will amount to amendment of licence under Rule 180 of Central Excise Rules or not?'
4. Tribunal has come to conclusion that the question posed have not been properly framed. Several aspects have been mixed up in one question. It relied upon its finding in appeal that Collector has no power under Industrial (Development Regulation) Act and Department has not been able to show that there is linkage between the two statutes. It came to the conclusion that no power having been vested with authorities under the Act to take .into account the provision of Industrial Development Regulation Act, there is no scope for any doubt or dispute about it. Coming to the conclusion that conclusion is obvious, the first question was decided not to be referred.
5. As regards the second question, Tribunal was also held to be too obvious for which no reference is called for. Lastly it has been observed that in reference application there is no scope for reopening the entire matter.
6. After hearing learned Senior Standing Counsel, we are satisfied that refusal to state a case was not justified. Even if a question framed by the Tribunal is not proper, Tribunal has jurisdiction to frame the real question that is involved. It may only deprecate the inexperience of the representative of the department in not being able to frame proper question. Tribunal is to consider whether a question of law arises out of the order. Such a question is said to arise when a question of law is raised and decided; or a question of law not raised by decided; or a question of law raised but not decided. Questions of law which are neither raised nor decided do not come within the scope of having arose out of the order. Tribunal does not seem to have kept the aforesaid principle while refusing to state a case. Thus refusal was not justified. Next, what would be the interpretation of the provisions of a statute to give jurisdiction to a statutory authority unless finally settled by the Supreme Court or the High Court to which such reference is sought for, cannot be said to be undisputed when a party seeks a reference and such a question can be said to be arising out of the order when the appeal was decided on that question. On this ground also Tribunal was not justified in refusing to state a case.
7. After hearing Mr. A.B. Mishra, learned Senior Standing Counsel, Central Government, we are satisfied that the following question of law arises out of the order of the Tribunal:
'Whether power under Rule 180 of the Central Excise Rules has been correctly exercised by the Collector of Central Excise on the facts and in the circumstances of the case?'
8. A statement of case is called for from the Customs, Excise and Gold (Control) Appellate Tribunal, Calcutta on the aforesaid question.