ORDER
1. This is a reference application made by the Revenue i.e. Commissioner, Central Excise under Section 35H of the Central Excise Act, 1944 against the order, bearing No. 640/2000/B, dated 3-5-2000, passed by CEGAT.
2. By this application the Revenue has sought calling for the reference from the Tribunal on the following question of law which according to the applicant arises out of me impugned order passed by the Tribunal in this case. The questions proposed are as follows:
The duty not levied can be said to be recoverable only when a quasi judicial order is made after considering the pleas of the assessee, consequently, the liability to pay less charged Customs duty arose only on the date when Order-in-original was passed by the Commissioner. The provision of Section 28AB enacted by Finance Act, 1996 on 28-9-96 and are adjunct to the provisions of Section 28 and according to which when the importer had willfully misstated the facts or concealed the fact, the interest as prescribed rate was also leviable along with the duty short paid by the importers. Therefore, is CEGAT justified in holding that liability to pay duty arose prior to amendment of Section 28AB in the case and consequently is CEGAT justified in law in holding that interest on confirmed demand was not leviable under Section 28AB in the Customs Act, 1962.
3. Heard Shri V.K. Zelawat, learned Assistant Solicitor General of India for the petitioner.
4. Having heard learned Counsel for the petitioner and having perused record of the case, we are of the opinion that this application deserves to be allowed by directing the Tribunal to send statement of case as according to us the question proposed supra are referable questions of law to the Court for being answered on merits.
5. Since we are satisfied that the question which we have framed infra does arise out of the order passed by the Tribunal in appeal out of which this application arises and secondly, they are referable one to this court and hence, they need to be called from the Tribunal so as to answer them, on merits in their right and proper perspective. We, however, need not burden our order by narrating the entire facts, as in our view, it is now essentially for the Tribunal to refer to the facts in detail in the statement of case to be drawn to this court and then refer the below mentioned questions of law to this court for their answer on merits. In other words, what is material for calling the statement of case from Tribunal is, recording of finding by this court; as to whether questions proposed by the applicant do arise out of the impugned order of Tribunal and whether they are referable questions of law or not for their answer on merits by this court in our reference. Once, therefore, we record this finding the questions of law can be called. As observed supra, in this case, we are so satisfied.
6. Accordingly and in view of the aforesaid discussion, application is allowed. The tribunal is directed to send the statement of case on the following questions:
1. Whether tribunal was justified in properly interpreting the two exemption notifications bearing Nos. 222/87 and 74/85 for holding that assessee (respondent) was entitled to claim exemption in payment of duty at a concessional rate on imported components, imported by them for their use in manufacture of LCV i.e. Light Commercial Vehicle in their Unit ?
2. Having recorded a finding in department’s favour to the effect that their (department’s) case is well founded in para 10, whether Tribunal was then still justified in deciding the issue of exemption in respondent’s’ (assessee’s) favour ?
3. Whether on facts found proved, Tribunal was justified in granting benefit of concessional rate of duty to assessee on the strength of two exemption notifications, referred in question no. 1?
4. When the imported components were not used in manufacture of LCV by the assessee but were diverted for meeting the spare part requirements for vehicles under warrants scheme, whether respondent (assessee) was eligible to claim the benefit of aforementioned 2 notifications in payment, of concessional rate of duty on the imported parts ?
5. Whether Tribunal was justified in holding in para 13 that no interest whether under Section 11AB of Central Excise Act or under Section 28AB of Customs Act can be claimed by the department from the assessee because it has no retrospective operation ?
Let the questions framed be referred to this court within there months from the date of this order alongwith all necessary enclosures required for answering the question referred. Needless to observe the statement of case would contain all necessary facts duly supported with the enclosed documents necessary for answering the question.
No cost.