ORDER
T.P. Nambiar, Member
1. This is a reference application filed by the applicant stating that certain questions of law has arisen out of order of the tribunal. In the Reference application, the applicants have stated that following question of law has arisen:–
(i) whether the issue is prima facie covered against the appellants.
(ii) whether the learned lower appellate authority’s order is prima facie sustainable in law.
(iii) whether the appellants should pre-deposit the entire duty amount when the spent Sulphuric acid under reference is not liable to duty under any of the provisions of the Central Excise Law.
2. Shri S.M. Khader Hussainy appearing for the applicants contended before us that the above questions of law are required to be referred to. He pointed out that in the case of Kerala Soaps and Oils Ltd. v. CCE Madras reported , in similar circumstances, it was stated that no duty is payable. He therefore stated that prima facie no duty is payable by the applicant. In this view of the matter, he stated that the questions of law should be referred to the Hon’ble High Court. He reiterated the reasoning mentioned in the application and relied on the above said decision.
3. The Ld. JDR Shri Rama Rao on the other hand contended that these are not questions arisen out of order of the tribunal.
4. We have considered the submissions. It is now seen that the applicants approached the tribunal against the orders passed by the Commissioner (Appeals) in Order-in-Appeal No. 25/97 dt 31.1.97. In terms of that order, he held that the applicants have not deposited the duty demanded in this case and since that amount was not deposited, he dismissed the appeal for non-compliance under Section 35F of the Act but he did not go into the merits of the case. It is against that order, the applicants approached the tribunal.
5. After hearing the applicants, the tribunal disposed of the appeal holding that in the facts and circumstances of the case, the applicants should deposit the full duty amount and if the full amount is deposited by the applicants on or before 28.8.97 and reported compliance of 29.8.97, the Commissioner (Appeals) should hear them on merits.
6. But the applicants have not deposited the said amount. The Ld. representative of the applicant states that in view of decision of the tribunal which is relied on, no duty demand is called for. Therefore, he stated that the questions may be referred to the High Court.
7. We have considered this submission. It is now seen that the tribunal has not dealt with the merits of the case. The reason is that the Commissioner (Appeals) himself did not look into the merits of the case and he dismissed the appeal on the threshold point holding that the amount adjudged by the adjudicating authority was not deposited and it was a dismissal of the appeal under Section 35F. Since the merits have not been gone into the tribunal only directed the applicants to deposit the amount in question and it is only in the nature of interim order directing the applicant to comply with the provisions of Section 35F. Therefore, merits of the case not having been decided, question of referring the matter to the High Court does not arise. If the applicant wants further time for depositing the amount, they have to make an application in that regard but reference application as such is not maintainable in view of the fact that the ultimate point for determination is not determined by the tribunal. What the tribunal decided was that the decision of the Commissioner (Appeals) in dismissing the appeal on the threshold point was set aside and the applicant was directed to deposit duty amount. In this view of the matter, we are of the view that since merits of the case have not been gone into the question of referring the questions of law does not arise and this application accordingly rejected. The stay petition also stands rejected.
Pronounced and dictated in the open court