- (1.) This is an application for stay in connection with the reference under Section 35H of the Central Excise Act, 1944. This is a provision for application to the High Court in relation to question of law in reference. The question as answered would be guiding the Tribunal to decide the appeal pending or disposed of by it. This is not an appeal before the High Court nor the High Court decides the appeal; it only answers the question. The jurisdiction is advisory in nature. It is a settled proposition of law that the jurisdiction conferred by the Statute in connection with reference, which are advisory in nature, does not clothe the High Court with its normal and ordinary powers, which are incidental to it. It also does not permit exercise its jurisdiction inherent in it. Section 151 CPC cannot be resorted to by the High Court while exercising such jurisdiction. The only exception is that the powers ancillary to the exercise of this jurisdiction can be resorted to by the High Court in the exigency of the situation. The different High Courts and the Supreme Court had already defined the scope of jurisdiction exercised by the High Court on reference. Different Fiscal and Revenue Laws provide for jurisdiction of reference almost in identical expression and all are similar in nature. We had also occasion to deal with this question in CIT, WB vRuby Traders, 2004 270 ITR 526; Lalit Mohan Thapar v.CWT (Cal) , GA No. 835 of 2002, AWT No. 3730 of 1998 disposed of by us on 23rd July 2004; CIT, Kolkata vTata Tea Ltd., ITA No. 233 of 2002 disposed of on 17th June 2004 by us. Discussing various decisions of the other High Courts and the Apex Court and relying thereupon, we held that the High Court cannot exercise inherent jurisdiction while dealing with a reference, since followed in Commissioner of Central Excise, Bolpur V/s. Saktigarh Textile Industries Pvt. Ltd.,2004 2005 188 ELT 8 GA No. 1150 2004 disposed of by us on 2nd/16th December.
(2.) In the circumstances, we do not think that we can exercise any power to grant stay as was held in Anoop Kumar V/s. Commissioner of Customs, 2002 145 ELT 48 by a learned Single Judge.
(3.) In the circumstances, the application for stay is hereby dismissed. However, this will not prevent the appellant to take appropriate steps before any appropriate forum as he may be advised.;