ORDER
S.L. Peeran, Member (J)
1. Commissioner of Customs has given an authorisation to the Assistant Commissioner of Customs, Review Cell, Customs House, Chennai to file an application under Section 130(1) of the Customs Act, 1962 on his behalf without indicating in the authorisation as to how Final Order Nos. 2242 to 2272/97 dated 11.9.97 is not legal or proper. In the annexed application, Assistant Commissioner, Review Cell has only reproduced the clarification received from the Ministry of Finance under F.No. 345/31/97-TRU dated 2.9.97 and thereafter made prayer that in view of the above clarification the additional duty of customs on imported rubber equal to cess has to be levied. He has prayed that the order of the CEGAT may be set aside and the order of the lower authority be restored.
2. From the authorisation as well as from the application filed by the Revenue, it cannot be deciphered as to whether this is a reference application or a rectification of mistake application of the final order passed by the Tribunal noted above. If it is a reference application, then reference under Section 130(1) of the Customs Act, 1962 is not referable to the Hon’ble High Court in a matter which pertains to rate of duty or valuation. Further, in a reference application, authorisation cannot be issued to any other officer by the Commissioner of Customs, but the Commissioner himself has to make out a reference application indicating the question(s) which are required to be referred. As there is no question drafted and the Commissioner has not signed the application, therefore, we are of the considered opinion that the application cannot be treated as a reference application.
3. The application cannot also be treated as an application for rectification of mistake as no mistake apparent on the record has been brought to the notice of the Tribunal.
4. The Tribunal considered the aspect pertaining to levy of Cess under Section 12 of the Rubber Act, 1947 and after extracting the Circulars, opined that the Ministry has clarified that the provisions of Section 12 of the Rubber Act, 1947 can only be invoked in respect of rubber produced in India and, therefore, held that Cess could not have been levied on imported rubber and in that view of the matter, set aside the order of the lower authority. The application filed by the Revenue1 is vague without pointing out any specific mistake and since it has been filed under Section 130(1) of the Customs Act, 1962, which pertains to referring the matter to Hon’ble High Court, therefore, the present application cannot also be treated as rectification of mistake application. In the facts and circumstances of the case, this application is rejected as not maintainable.