- (1.) HEARD learned counsel for the parties.
(2.) THE Union of India-applicant requires this Court to direct the Customs, Excise & Gold (Control) Appellant Tribunal, New Delhi to refer the following question of law:- (i) Whether the CEGAT has any authority of rule that the show cause notice could not be issued by the Superintendent of Central Excise, who was, under the law, a `central Excise Officer' as defined in Section 2 (b) of the Central Excise and Salt Act, 1944? (ii) Whether in view of the contents declared by assessee being found totally different on testing of the samples, it would will not amount to mis-declaration/mis-statement under Section 11-A of the Central Excises and Salt Act, 1944? Both the above questions are said to be arising out of the Tribunal's order dated 1. 3. 1997, allowing the appeal filed by the respondent-assessee. The application filed by the Revenue under Sec. 35 G (1) was rejected on the ground that as the dispute relates to the classification of the commodity, in question, no reference can be made of such question and therefore, the application was not maintainable. The same contention has been raised before us by the learned counsel for the respondent-assessee by why of preliminary objection that application under Sec. 35 G is not maintainable as the subject matter of the dispute is ousted form the ambit of reference. He has relied upon a decision of this Court in the case of Laxmi Udyog vs. Commissioner of Central Excise (2002 (1), wherein the Court held that:- " though question is a question of law but since it relates to determination of rate of Excise duty payable thereon, the reference under Sec. 35g is not envisaged. Such an order is directly challenged to Supreme Court under Section 35l of the Central Excise Act, 1944. " To understand the controversy raised by respondent and the reasoning giving by the Tribunal for rejecting the application, the facts in brief may be noticed.
(3.) A show-cause notice was issued to the respondent No. 28. 2. 1985 that the commodity in question is `non cellulosic synthetic' fibre and is not `non cellulosic Waste'. According to the Assistant Commissioner, the commodity in question is classifiable under item 18 (III) (ii) of the Central Excise Tariff and the rate of the Central Excise Duty is Rs. 9/- per Kg. + Special Duty @ 10% of basic Excise Duty + Additional Excise Duty @ 15% of Basic Excise Duty and is not classifiable under item 18 (III) (i) of Central Excise Tariff under which the articles have been cleared. On adjudication being made in pursuance of the show cause notice, an appeal was preferred before the Collector of the Central Excise (Appeals ). That appeal was dismissed on 31. 10. 1988. The order of the Collector, Central Excise Appeal was subjected to the further appeal before the Customs, Excise & Gold (Control) Appellate Tribunal. Before the Tribunal, the appellant, apart from raising objections against the order on merits, also urged that the show cause notice dated 28. 2. 1985 was issued by the Superintendent, raising the demand for a period beyond the period of six months and since it was adjudicated by the Asstt. Collector, same is not sustainable in the eye of law. It was contended that according to Section 11a of the Act, the Collector, Central Excise was the only authority who was empowered to issue show cause notice for a period beyond six months prior to date of such notice and since the same has not been done in the instant case order passed by the Assistant Commissioner was not sustainable in the eye of law. It was also urged that since show cause notice does not proceed on any non-disclosure on the part of the assessee, power of issuing show cause notice beyond six months could not be exercise. ;