ORDER
K. Gopal Hegde, Member (J)
1. This application under Section 35G(1) of the Central Excises and Salt Act, 1944 is by the Respondent in, Appeal No ED 65 of J984. By this application, the applicant requires the Tribunal to refer the questions of law set out in Annexure B to the application by drawing up a statement of the case. We heard Shri Biradar, Advocate and Shri N.K. Pattekar, JDR.
2. During the hearing, Shri Biradar conceded that the questions at serial Nos. 3, 4 and 5 do not arise from the order of the Tribunal. So far as question No. 6 is concerned, his submission was that the Bench may if it deemed fit modify the question. He, however, contended that the questions at serial Nos. 1 and 2 arise out of the order-in-appeal No 65/84. In support of his contention, he urged the very grounds which he had urged at the time of hearing of the appeal.
3. Shri Pattekar appearing for the Respondent Collector, contended that no question of law as such arises and therefore question of reference to the High Court would not arise. We have carefully considered the submissions made on both sides. We have perused our order in Appeal No. 65 of 84. The question that could be referred to the High Court should arise out of the order in the appeal. It is not all questions of law that could be referred to the High Court. The contention in the appeal was the duty had been paid under protest and this protest was manifested in the Gate Passes. The question before the Tribunal in the appeal was whether the duty was paid under protest. It was purely a question of fact and not law. The Tribunal considered the various provisions of the Central Excises and Salt Act and Rules and also the documents produced. The Tribunal also took into consideration the submissions made on behalf of the Department, that though, no procedure as such was prescribed regarding the mode of protest, conventionally the protest was being done by means of a letter addressed to the authority. The Tribunal further took into consideration that the classification list was accepted by the applicant herein and also paid duty as per the classification. Taking these aspects and other aspects into consideration on the question of fact, namely whether the payment was made under protest or not the Tribunal held that the payment was not made under protest. It was purely a question of fact that was before the Tribunal and not law. In the circumstances, the question of referring the points at serial No. 1 and 2 would not arise at all. As regards the point at serial No. 6, the contention was whether the Tribunal discriminated between this appellant and the appellant in three other decisions referred to in the application, We are not able to understand what exactly the applicant means by discrimination. If the Tribunal had not followed the earlier judgments of the Tribunal, it would not amount to discrimination. It would at best amount to not applying the law laid down in those decisions. But then, the complaint that the Tribunal did not follow the law laid down by the earlier decisions of the Tribunal is not well founded. On the other hand, we find from the order in appeal that the Tribunal had observed : ‘the decision relied upon by the learned Advocate for the Respondent instead of supporting his contention, supports the view we have taken. From the facts of the case, it is clear that the respondents therein protested against the classification and they were allowed to pay duty under protest. In those circumstances, the Special Bench held that the limitation prescribed under 11B was inapplicable. It further held that in the absence of evidence regarding intimation required to be conveyed to the assessee under Sub-rule (5) of Rule 173B, the respondents therein were not required to challenge the classification In the instant case, as has been pointed out earlier, no objection was taken as to the classification. The procedure required under Rule 173B(3) was also not followed. In the circumstances, we hold that the decision relied upon by the learned Advocate for the respondent is inapplicable to the facts of the present case. It is thus seen that the Tribunal distinguished the earlier decision from the facts of the present appeal. In the circumstances, the complaint that the Tribunal discriminated between this appellant and the other appellants is totally unfounded
4. On consideration of all the aspects, we refuse to refer any of the questions set out in the application and reject this application also.