- (1.) THIS application under Section 35H of the Central Excise Act, 1944, relates to an order dated 2.8.2000 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, Eastern Bench, Calcutta, in Miscellaneous Application (ROM) No. 147/ 2000 in appeal No. E/V -432/97 whereby the Tribunal while allowing the aforesaid Miscellaneous application held that no interest can be charged with respect to duty and penalty for the period prior to coming into force of Section 11AB of the Act, The aforesaid order dated 2.8.2000 was passed by the Tribunal supplemented to the order dated 6.8.1999 passed by the Tribunal (but by an entirely different Bench). It is the admitted case of the parties, especially of the respondent, that the order dated 6.8.1999 was challenged by the respondent in the Supreme Court by filing an appeal under Section 35 -L(b) of the Act being Civil Appeal No. D19710 of 1999 which was admitted by their lordships of the Supreme Court on 7.1.2000.
(2.) DESPITE the fact that the order dated 6.8.1999 was challenged by the respondent in appeal before the Supreme Court, even while the appeal in the Supreme Court has already been filed and the same was pending adjudication for hearing, the respondent chose to file the aforesaid Miscellaneous Application (ROM) No. 147 of 2000 before the Tribunal and. as noticed above, despite the pendency of the aforesaid, appeal before the Supreme Court, the Tribunal Chose to pass the impugned order dated 2nd August, 2000, modifying and substituting the order dated 6.8.1999 insofar as the interest part was concerned. Prima facie, our view at this stage appears to be that perhaps it was not permissible for the respondent to have approached the Tribunal in respect to a matter which was directly or indirectly under adjudication in the appeal pending before the Supreme Court and equally perhaps, prima facie, it ware not open to the Tribunal to have adjudicated upon such matter and to have arrived at its findings, one way or the other in the application. In addition to this, the petitioner in the present Application filed, under Section 35H(1) of the Act has also raised a question with regard to levy of interest under Section 11AB of the Act, consequent upon the order of adjudication by the Adjudicating Authority.
(3.) WE , therefore, while allowing this Application under Section 35H of the Act direct the Tribunal to refer the following two questions of law to us in terms of Sub -section (4) of Section 35H of the Act. by drawing up the statement of the case : - - (i) Whether in view of the pendency of the appeal in the Supreme Court, being Civil Appeal No. D19710 of 1999 against the order dated 6.8.1999, it was open to the respondent to have filed Miscellaneous Application (ROM) No. 147 of 2000 before the tribunal and whether in view of the aforesaid pendency of the appeal in the Supreme Court, It was permissible for the Tribunal to have entertained the aforesaid application and passed the order dated 2.8.2000? (ii) Consequent to insertion of Section 11AB in CEA 1944, whether in an order of adjudication where duty payable is determined for the first time after insertion of Section 11AB, the Adjudicating Authority would now be empowered to levy interest under Section 11AB upon the duty determined to be payable by the assessee or not even for evasion of duty taking place in the past prior to insertion of Section 11AB?;