ORDER
V.K. Ashtana, Member (T)
1. These two reference applications are filed by the Revenue against the Final Order Nos. 1209, 1210/98, dated 26-6-1998 [1998 (104) E.L.T. 573 (T)] of the Tribunal. In the said final order the Tribunal had set aside the impugned order-in-original confirming demand of duty with respect to inclusion of return freight charges on empty tankers/lorry in the assessable value of the chemicals manufactured by the assessee; duty on tankers fabricated within the assessee’s factory and mounted on duty paid truck chassis belonging to the transport contractors; and differential duty on freight charges which was sought to be added to the assessable value.
2. Smt. Aruna N. Gupta, learned DR reiterates the said applications and draws our attention to the Revenue’s prayer to refer the following questions of law to the Hon’ble High Court of Andhra Pradesh :
(i) Inclusion of return freight charges of empty tankers in the value;
(ii) Demand of duty on tankers fabricated on own account within the factory and mounted in the same factory, on duty paid truck chassis belonging to the contractors.
3. Heard Smt. Aruna N. Gupta, learned DR and Shri M. Chandrasekharan, learned Advocate and Shri S.R. Narayanan, learned Consultant for the applicants.
4. The learned Senior Advocate submits that as far as the first question is concerned, it concerns inclusion of freight charges in the assessable value of empty tankers and therefore, clearly the matter deals with fixation of assessable value under Section 4 of the C.E. Act, 1944. The learned Sr. Counsel further submits that as far as the second question is concerned, the said question concerns with dutiability or otherwise of the tankers fabricated by the assessee and also involves decision on the rate of duty. The learned Sr. Counsel further submits that on a plain reading of Section 35G(1) it is clear that no reference application lies against any order relating to determination of any question having a relation to the rate of duty of excise or to the value of goods for the purpose of assessment. He submits that in this case, both these are involved and therefore, reference applications cannot be entertained by the Tribunal in terms of the above provisions.
5. We have carefully considered the submissions. We find that the Tribunal in the subject final order while considering the question of dutiability of the said tankers had considered the scope of the Notification No. 50/94, dated 1-3-1994 which deals with exemption to bodies built and mounted on chassis of motor vehicles specified therein and had held that such exemption in the said Notification would be applicable to the facts of this case. The Tribunal had also considered the question of inclusion of certain freight charges in the assessable value and had allowed the appeals on both these issues. We find that the questions framed for reference by the Revenue clearly deal with aspects of rate of duty as well as valuation for the purpose of assessment of duty and therefore, reference applications are hit by exclusion of the said issues from consideration under reference applications under Section 35G(1) ibid. Therefore, the reference applications are not maintainable under that Section and the same are rejected.