Full Judgment
1. The petitioner has moved this application under Section 35(G)(3) because his application of 31(G)(1) for referring the following question, stated to be a question of law to this court for its opinion has been rejected by the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi (CEGAT).
'Whether the parts of Power Driven Pumps falling under Heading No. 84.13 were entitled to the benefit of Exemption Notification No. 155/86, Dt. 1-3-86 read with Note 2(a) of Section XVI of Chapter 84 of CET-1986-87.'
2. The Tribunal vide its order dated 18-8-2000 has rejected the application under Section 35(G)(1) by the following order :-
'In view of the wordings of Section 35G it is clear that no reference lies in the matter involving either of valuation or of rale of duty. Since the matter dealt with the issue with reference to the classification vis. a vis. rate of duty no reference lies. Precisely, this was the consistent view of the Tribunal in view of the wordings of Section 35G. Accordingly reference application filed by the party is dismissed.'
3. Thus the application under 35(G)(1) was not dismissed on the ground that no question of law arises but was dismissed on the ground that the question of law arising out of the Tribunal's order cannot be made subject matter of the reference under Section 35(G) inasmuch as the question at issue having relation to rate of Duty of Excise, which in view of the clear provision of Section 35G reads as under :-
'Section 35G. 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 Section 35C (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 furlher period not exceeding thirty days. (2) On receipt of notice that an application has been made under Sub-section (1), the person against whom such application has been made, may, notwithstanding that he may not have filed such an application, file, within forty-five days of the receipt of the notice, a memorandum of cross-objections verified in the prescribed manner against any part of the order in relation to which an application for reference has been made and such memorandum shall be disposed of by the Appellate Tribunal as if it were an application presented within the time specified in Sub-section (1).
(3) If, on an application made under Sub-section (1), the Appellate Tribunal refuses to state the case on the ground, that no question of law arises, the Collector of Central Excise, or, as the case may be, the other party may, within six months from the date on which he is served with notice of such refusal, apply to the High Court and the High Court may, if it is not satisfied with the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state the case and to refer it, and on receipt of any such requisition, the Appellate Tribunal shall state the case and refer it accordingly.
(4) Where in the exercise of its powers under Sub-section (3), the Appellate Tribunal refuses to state a case which it has been required by an applicant to state, the applicant may, within thirty days from the date on which he receives notice of such refusal, withdraw his application and, if he does so, the fee, if any, paid by him shall be refunded.'
4. That an order under Section 35C, which is not an order relating amongst other things to the determination of any question having relation to the rate of Duty of Excise or to the value of goods for the purpose of assessment may be referred to the High Court if, such question is a question of law arising out of such order. The provision of Sub-section 3 of Section 35G is also inhibited by the same limitations with which the power of Tribunal under Section 35G(1) is inherited in the matter of making a reference.
5. The controversy which has been decided by the Tribunal and has been sought to be raised in the question suggested by the assessee surrounds the controversy at what rates the parts of power driven pumps are subjected to Excise Duty. The title of Chapter 84 in Section 16 of the Central Excise Tariff Act, 1985 reads as under :
'MACHINERY AND MECHANICAL APPLIANCES; ELECTRICAL EQUIPMENT; PARTS THEREOF; SOUND REC