Opinion rendered by HC on reference sought by Revenue is binding - Tribunal is to give effect to order passed by HC - appellant has sought to confuse laws then existing and after amendment - it cannot be said that Tribunal has reviewed own order: HC
By TIOL News Service
CHANDIGARH, MAR 18, 2013: THE Tribunal had on 09.10.2000 allowed the appeal of the assessee.
The reference against the said order was decided on 26.08.2011 by the High Court thus:
"This reference has been made on a direction by this Court. The question referred for consideration is as under:-
"Whether Rule 5 of the Hot-rolling steel Mills Annual capacity Determination Rules, 1997 would apply to a case where annual Capacity of production has been re-determined in terms of Rule 4 (2) on account of change in parameters even though re-determined annual capacity is less than the annual production for the financial year 1996-97."
Learned counsel for the revenue points out that the matter was kept pending on account of pendency of identical issue before the Hon'ble Supreme Court, which has been decided on 6.7.2011 being C.A. No.3400 of 2003 CCE, Chandigarh v. M/s Doaba Steel Rolling Mills - (2011-TIOL-59-SC-CX) in favour of the revenue and against the assessee. In view of the said judgment, question referred is decided in favour of the Revenue.
The reference is disposed of.
It is made clear that if the assessee is aggrieved by this order, it will be at liberty to move this Court."
On a miscellaneous application filed by the Revenue after the decision on the reference by the High Court, the Tribunal passed an order on 02.01.2013 allowing the application and ordering that the appeal should be listed for final disposal on 05.03.2013.
The appellant has challenged this order before the High Court and raised the following substantial question of law -
"(i) Whether the impugned order is sustainable in the eyes of law based on a specific bar provided under Section 35-C(4) of the Central Excise Act, 1944?
(ii) Whether the ld. Tribunal has the power to review its own order based on subsequent change in law?
(iii) Whether the impugned order could have been passed by the ld. Tribunal without affording any opportunity of hearing to the appellant?"
The appellant submitted that the order of the Tribunal is final in terms of Section 35C(4) of the CEA, 1944 except as provided under Section 35-G or 35-L of the Act. Inasmuch as since the order passed by the Tribunal is under Section 35-H of the Act, the same is not protected, therefore, the order impugned dated 02.01.2013 in the present appeal is leading to review of the earlier order passed by the Tribunal.
Incidentally, the Revenue viz. CCE, Chandigarh was not represented.
The High Court observed -
"We find that argument of the learned counsel for the appellant is misconceived. When the order was passed by the Tribunal on 09.10.2000, the Revenue had only remedy of seeking reference in terms of the then Section 35-G of the Act from the Tribunal. If the Tribunal does not refer the questions of law for the opinion of this Court, the aggrieved party could invoke jurisdiction of this Court under Section 35-H of the Act. It was in these terms, the jurisdiction of this Court was invoked by the Revenue against the order dated 09.10.2000 passed by the Tribunal. The opinion rendered by the High Court, on such reference sought by the Revenue, is binding on the authorities under the Act. The Tribunal is to give effect to the order passed by this Court. We find that the appellant has sought to confuse the provisions then existing and after amendment with effect from 14.5.2003 substituting Section 35 G by Section 144 of the Finance Act, 2003."
Holding that there is no substantial question of law that arises for consideration, the appeal was dismissed.
(See 2013-TIOL-206-HC-P&H-CX)
