ORDER
S.L. Peeran, Member (J)
1. The Commissioner has filed these two reference applications arising out of common Final Order Nos. 1405 & 1406/98 dt. 24.7.1998. As the questions raised in these applications are same, hence they are taken up together for disposal.
2. By the said order, the Tribunal had considered the issue pertaining to confirmation of demands under proviso to Section 11A of the Act. The matter was initially heard by Two Member of the Bench comprising Shri V.P. Gulati, the then Hon’ble Member (T) and Shri T.P. Nambiar, the then Hon’ble Member (J). There was a difference of opinion between the two Members and the questions of difference of opinion referred to Third Member were as below:-
In view of the difference of opinion between the orders passed by the learned Vice President and learned Member (Judicial), the Registry is directed to place the records before a Third Member, who is not a party to the difference of opinion, whenever such a Third Member is available in this Bench vide Order No. 8/95 dated 16.11.1995) to resolve the following:
Whether in the facts and circumstances of the case the demand is barred by limitation and the principles of constructive res judicata would not apply, as held by the Vice President, for the reasons recorded by him.
(OR)
The appeal filed by the appellant is liable for dismissal notwithstanding the plea of limitation, on the ground that this plea is barred by the principles of constructive res judicata, as held by the Member (Judicial).
3. The matter was heard by Third Member and after a detailed consideration of the questions referred to the third Member, the third Member agreed with Member (T) who later became the Vice-President on the aspect of time bar and held that demands raised is barred by time. The Commissioner is aggrieved with the order of the Tribunal and has sought reference of the matter to High Court seeking reference of the following questions:
(1) Where goods were cleared pursuant to an interim order passed by the High Court, on furnishing a Bank Guarantee towards differential duty and finally proceedings culminated in passing an adjudication order, can it be said that Section 11A of the Act is applicable?
(2) Can a party who filed writ petition and obtained interim orders preventing the department from collecting duty can be permitted to plead the bar of limitation subsequently?
(3) Whether in the facts and circumstances of the case, in determining the validity of the demand, the period during which the proceedings are pending before the Courts/Tribunals should be excluded for computation of period of limitation?
(4) Whether the facts and circumstances of the case, the assessee is debarred by the principles of constructive res judicata from rising the plea of limitation in view of the judgment of the Supreme Court restoring the order of adjudication made by the Asst. Commissioner?
4. Arguing for applicants Ld. DR takes us through the entire order of the Tribunal and submits that above questions raised by the Commissioner are referrable to the High Court under Section 35G(1) of the Act. He points out from the grounds made in the reference applications that the demands were time barred as demands were provisionally assessed and therefore the findings arrived at by the Tribunal holding that the demands are time barred is not a correct order and the findings given by Member (J) Shri T.P. Nambiar is correct order with regard to principles of constructive res judicata and therefore all these questions are questions of law requiring reference to Hon’ble High Court.
5. Learned Counsel Shri V.M. Doiphode submits that the Hon’ble Member (T) Shri V.P. Gulati had gone into great detail in which the aspect pertaining limitation and the findings given were based on facts and there was no question of law involved therein and the findings were conclusions on the basis of well laid down judgment of Apex Court. As law was clearly laid down in the matter, the Hon’ble Member (T) only had referred to only the facts and what is required to be seen is as to whether in terms of those facts, the law laid down by the Hon’ble Supreme Court would apply or not. Learned Member (T) Shri V.K. Ashtana had a detailed consideration of the matter and agreed with the findings given by Member (T) Shri V.P. Gulati. The majority of both the Members are based on appreciation of facts with respect to the law laid down by the Supreme Court. Both the Members had relied on the judgment rendered in Gokak Patel Ltd. as in 1987 (28) ELT 53 which had laid down the aspect pertaining to appreciation of facts for applying the proviso to Section 11A of the Act. He submits that where questions of facts are appreciated and law applied in such cases the question of law does not raise for reference to the High Court in this regard. He submits that as law is settled in terms of Apex Court judgment cited by both the Members the question of law does not arise for reference to a High Court. With regard to principles of constructive res judicata also both the Lempers had relied on large number of Supreme Court judgments as noted in the order itself. Such judgment was based on a well settled law of the Apex Court. The question as referred to in para-4 with regard to constructive res judicata does not arise ‘or reference to a High Court. He submits that in the following judgments a clear view has been taken that where the questions on facts are appreciated, then the question of law does not arise for reference to a High Court:-
(1) Curti Chemicals Pvt. Ltd. CCE (Tribunal 3 Member Bench)
(2) CCE Madras v. Chennai Bottling Co., Madras (Tribunal 3 Member Bench)
(3) Jhaboolal Kasera Rolling Mills v. CCE (Tribunal 2 Member Bench)
(4) CCE Calcutta v. Peria Karamalai Tea & Produce Co. 1987 (27) ELT 362 (Tribunal 2 Member Bench)
6. Learned Counsel submits that there is no case made out for reference in the matter to the High Court and this reference is required to be rejected.
7. On a careful consideration of the submissions and on a perusal of the entire order of the Tribunal, we agree with the arguments made by Ld. Advocate in the matter. On a perusal of the questions raised, we are of the considered opinion that the Commissioner has not drafted the question of law for reference in terms of Section 35(G) of the Act where the issue has been well settled by the Apex Court judgment and the said ratio of the judgment has been applied to the facts of the case, then question of referring the matter to a High Court does not arise. Further more, we notice from the first question referred to as above that it pertained to the goods cleared in pursuance of an interim order passed by the High Court and furnishing a Bank Guarantee towards differential duty. The questions raised therein are mere appreciation of facts and no questions of law for reference.
8. As regards the second question raised, we notice that the Commissioner also has not raised proper questions for reference. He has only raised a question which is not question of law.
9. Likewise, the third question also does not raise a question of law as it refers to validity of demands on facts and circumstances of the casse.
10. As regards the fourth question, we notice that the same is covered by a large number of Supreme Court judgments which the Tribunal took note of in the order.
11. We have also noted the citations given by Ld. Advocate that questions of facts are not referrable to a High Court. Further, we are constrained to note that the above questions drafted does not also merit any consideration as they are not questions of law referrable to a High Court and hence same is rejected.