- (1.) HAVING heard counsel for the applicant we are of opinion that the question of law mentioned in this application in regard to which a prayer has been made that the Tribunal should be required to refer the same to this Court for its opinion, does not deserve to be required to be so referred. As is apparent from the appellate order of the Tribunal Rule 10 -A of the Central Excise Rules under which the show cause notice was issued was repealed with effect from 6th August, 1977 whereas the show cause notice was issued on 14th September, 1977, i.e., alter the repeal of Rule 10 -A. The Tribunal has further recorded a finding that on the facts of the instant case it was apparent that the Appellate Collector had impliedly conceded the contention of the opposite party that action could not be taken under Rule 9(2) of the aforesaid Rules. In Rayla Corporation v. Director of Enforcement AIR 1970 SC 494 a complaint was made for an offence under Rule 132 -A(4) of the Defence of India Rules after 1st April, 1965 from which date the said Rule was omitted. It was held that the action taken under the said Rule was invalid. In the instant case also the show -cause notice under Rule 10 -A, as held by the Tribunal was issued after Rule 10 -A had been repealed.
(2.) IN N.B. Sanjana v. E.S. & W. Mills , AIR1971 SC 2039 , 1973 ECR6 (NULL ), 1978 (2 )ELT399 (SC ), (1971 )1 SCC337 , [1971 ]3 SCR506 it was held that in order to attract Rule 9(2) of the Central Excise Rules goods liable to duty must have been removed clandestinely and without assessment. No such finding has been recorded in the instant case. It is for these reasons that we are of opinion that this application for requiring the Tribunal to refer the question of law stated in the application is not maintainable. It is accordingly dismissed but there shall he no order as to costs.;