IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date: 09/08/2005
Coram
THE HONOURABLE MR. MARKANDEY KATJU, THE CHIEF JUSTICE
and
THE HONOURABLE MR. JUSTICE F.M.IBRAHIM KALIFULLA
Reference Case Petition No.49 of 2002
Commissioner of Central Excise,
Chennai-II. .. Applicant
-Vs-
1. Customs, Excise & Gold (Control)
Appellate Tribunal,
South Zonal Bench, Chennai,
1st Floor, Shastri Bhavan
Annexure,
26, Haddows Road,
Chennai-600 006.
2. M/s. Addison & Co.
803, Anna Salai,
Chennai-600 002. .. Respondents
Reference Application filed under Section 35H(1) of the Central
Excise Act, 1944 against the final order No.126/2002 dated 5.2.2002
passed by the Customs Excise & Gold (Control)Appellate Tribunal in the
Appeal No.E/154/1994 filed by M/s. Addison & Co., Chennai.
****
!for applicant : Mr. K.Veeraraghavan
SCGSC.
^for respondent 2: Mr. Krishna Srinivasan
for M/s. Ramasubramaniam Associates
:JUDGMENT
(Judgment of the Court was delivered by
The Honourable The Chief Justice)
This Reference Case Petition by the Commissioner of Central Excise,
Chennai-II purports to have been filed under Section 35H(1) of the
Central Excise Act, 1944 (hereinafter referred to as the ‘Act’).
2. We have heard the learned counsel for the parties and perused
the record.
3. In our opinion, this Reference Case Petition is totally
misconceived and is liable to be rejected.
4. It may be mentioned that in this case the Customs, Excise and
Gold (Control) Appellate Tribunal decided the assessee’s appeal by
order dated 7.12.1996 under Section 35C of the Act. Against that order, the
assessee filed a Reference Application under Section 35G(3) of
the Act which was decided in the assessee’s favour by the High Court
on 23.11.2000 in R.C.No.1 of 1999. The consequential order was then
passed by the Tribunal under Section 35K of the Act on 5.2.2002 in
conformity with the opinion of the High Court dated 23.11.2000. It is
against this order under Section 35K of the Act that the Department has filed
this Reference Case Petition.
5. It may be mentioned that when the High Court passes an order
under Section 35K of the Act, this order is not really the final order, rather
it is the opinion or advice which the High Court gives to the Tribunal under
its advisory jurisdiction. The Tribunal is bound to
follow this advice and then pass a final order in accordance with the
advice or opinion of the High Court.
6. The position is analogous to that of the Income Tax Act, in
which, on a reference under Section 256 of the Income Tax Act,1961 the
High Court gives its opinion or advice, but thereafter, the matter
goes back to the Income Tax Appellate Tribunal and the Tribunal passes a final
order under Section 260 (1) of the Income Tax Act which is to
be in conformity with the opinion or advice given by the High Court.
7. Though the High Court’s advice or opinion has to be complied
with by the Tribunal, such advice or opinion is not the final order
rather it is the subsequent order of the Tribunal which is the final
order.
8. Under Section 35L of the Act, the assessee can file an appeal
to the Supreme Court against the advisory opinion of the High Court in the
reference made under Section 35G or 35H of the Act. The
reference under Section 35G is against the order of the Tribunal passed under
Section 35C but not the order under Section 35K. Thus, there is no
provision for making a reference against an order of the Tribunal
under Section 35K of the Act. We are informed that against the opinion
of the High Court given in the reference under Section 35G of the Act, an
appeal has already been filed under Section 35L before the
Supreme Court which is pending. Of course if the Supreme Court reverses
the opinion of the High Court in the reference then the Tribunal will
have to pass another consequential order in conformity with the
decision of the Supreme Court, but this reference petition is totally
misconceived. It is accordingly dismissed.
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