1991 (6) TMI 156 - AT - Customs

Summary

Issues Involved:
1. Whether one Reference Application suffices when a common order disposes of two appeals.
2. The necessity of filing separate Reference Applications for each adjudication order.
3. The applicability of precedents in determining the requirement for separate applications.
4. The treatment of the present Reference Application after the withdrawal of the second application.

Detailed Analysis:

Issue 1: Whether one Reference Application suffices when a common order disposes of two appeals.

The applicant contended that a single Reference Application should suffice since both appeals were disposed of by a common order. Under Section 131 of the Customs Act, 1962, the aggrieved party can require the Appellate Tribunal to refer any question arising out of such an order to the High Court. The applicant argued that since there was only one order, one application should be sufficient.

Issue 2: The necessity of filing separate Reference Applications for each adjudication order.

The respondents contended that separate Reference Applications should be filed for each adjudication order, even if the Tribunal disposed of the appeals by a common order. This argument was supported by precedents such as the Delhi High Court's decision in *Nawal Bihari Lal Goel v. Commissioner of Income-Tax, Delhi-V*, which held that separate applications are required for each assessment year. Similarly, the Delhi High Court in *Kwality Restaurant & Ice Cream Co. v. Commissioner of Income-Tax* held that separate applications should be filed for each assessment year, even if covered by a single order.

Issue 3: The applicability of precedents in determining the requirement for separate applications.

The Tribunal referred to several precedents to determine the necessity of separate applications. In *Nawal Bihari Lal Goel v. Commissioner of Income-Tax, Delhi-V*, the Delhi High Court held that separate applications are required for each assessment year. In *Kwality Restaurant & Ice Cream Co. v. Commissioner of Income-Tax*, the Delhi High Court held that separate applications should be filed for each assessment year. However, in *Commissioner of Income-Tax Delhi (Central) and Another v. Income-Tax Appellate Tribunal, Delhi Bench-B and Others*, it was held that one Reference Application was sufficient when the Tribunal disposed of appeals by a common order. The Tribunal found that the facts of the current case were more aligned with the need for separate applications, as there were two separate show cause notices and adjudication orders.

Issue 4: The treatment of the present Reference Application after the withdrawal of the second application.

The Tribunal decided that the present Reference Application could be treated as pertaining to Appeal No. C-95/86, given that the second Reference Application (No. 2/88) was dismissed. The Tribunal cited the Delhi High Court's decision in *Commissioner of Income Tax and Another v. Income-Tax Appellate Tribunal, Delhi Bench*, which held that even if multiple appeals are consolidated and heard together, an appeal against one of the judgments is not barred merely because other appeals were not filed. The Madhya Pradesh High Court in *Union of India and Another v. Income Tax Appellate Tribunal and Another* also supported this view, stating that a consolidated reference application should be treated as proper and valid for at least one assessment year.

Conclusion:

The Tribunal concluded that two separate Reference Applications were necessary due to the two separate adjudication orders and show cause notices. Consequently, the present Reference Application was deemed maintainable only with respect to the disposal of Appeal No. C-95/86. The Tribunal then fixed a date for hearing the application on its merits.