HIGH COURT OF PUNJAB AND HARYANA
Devta Steel Rolling Mills
Commissioner of Central Excise, Chandigarh
HEMANT GUPTA AND RITU BAHRI, JJ.
CEA NO. 14 OF 2013 (O&M)
FEBRUARY 22, 2013
Hemant Gupta, J.
The appellant has sought to raise following substantial question of law arising out of an order dated 02.01.2013 passed by Custom Excise and Service Tax Appellate Tribunal (for short ‘the Tribunal’):
“(i) Whether the impugned order is sustainable in the eyes of law based on a specific bar provided under section 35-C(4) of the Central Excise Act, 1944?
(ii) Whether the ld. Tribunal has the power to review its own order based on subsequent change in law?
(iii) Whether the impugned order could have been passed by the ld. Tribunal without affording any opportunity of hearing to the appellant?”
2. Earlier the Tribunal on 09.10.2000 allowed the appeal of the assessee. The reference against the said order before this Court was decided on 26.08.2011 vide GCR No. 2 of 2003. The said order reads as under:
“This reference has been made on a direction by this Court. The question referred for consideration is as under:-
“Whether Rule 5 of the Hot-rolling steel Mills Annual capacity Determination Rules, 1997 would apply to a case where annual Capacity of production has been redetermined in terms of Rule 4 (2) on account of change in parameters even though redetermined annual capacity is less than the annual production for the financial year 1996-97.”
Learned counsel for the revenue points out that the matter was kept pending on account of pendency of identical issue before the Honorable Supreme Court, which has been decided on 6.7.2011 being C.A. No. 3400 of 2003 CCE, Chandigarh v. M/s Doaba Steel Rolling Mills = (2011-TIOL-59-SC-CX). in favour of the revenue and against the assessee. In view of the said judgment, question referred is decided in favour of the Revenue.
The reference is disposed of.
It is made clear that if the assessee is aggrieved by this order, it will be at liberty to move this Court.”
3. The Tribunal has passed an order on 02.01.2013 on an miscellaneous application filed by the Revenue after the decision of the reference by this Court. The Tribunal has allowed the application and ordered the appeal to be listed for final disposal on 05.03.2013. The challenge in the present appeal is to the said order passed by the Tribunal posting the appeal for final disposal.
4. Learned counsel for the appellant has vehemently argued that the order of the Tribunal is final in/terms of section 35-C(4) of the Central Excise Act, 1944 (for brevity ‘the Act’) except as provided under section 35-G or 35-L of the Act. Since the order passed by the Tribunal is under section 35-H of the Act, the same is not protected, therefore, the order impugned in the present appeal is leading to review of the earlier order passed by the Tribunal.
5. We find that argument of the learned counsel for the appellant is misconceived. When the order was passed by the Tribunal on 09.10.2000, the Revenue had only remedy of seeking reference in terms of the then Section 35-G of the Act from the Tribunal. If the Tribunal does not refer the questions of law for the opinion of this Court, the aggrieved party could invoke jurisdiction of this Court under Section 35-H of the Act. It was in these terms, the jurisdiction of this Court was invoked by the Revenue against the order dated 09.10.2000 passed by the Tribunal. The opinion rendered by the High Court, on such reference sought by the Revenue, is binding on the authorities under the Act. The Tribunal is to give effect to the order passed by this Court. We find that the appellant has sought to confuse the provisions then existing and after amendment with effect from 14.5.2003 substituting Section 35-G by Section 144 of the Finance Act, 2003.
6. Consequently, we do not find that any substantial question of law arises for consideration in the present appeal.