TMI Blog2009 (5) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... h March, 1990. It is registered as a Small Scale Industrial Unit with the Directorate of Industries of the State of U.P. 3. An investigation was said to have been carried out by the Preventive Unit of Saharanpur Division of the Central Excise Department in regard to the business activities of the appellant in which it was observed that it had neither obtained any Central Excise licence for manufacture of conduit pipes nor filed any declaration with the department for granting them exemption from the licensing provisions. It is, however, now not disputed that the appellant on or about 22nd January, 1991 informed the Section Officer of the Central Excise, Roorkee that it had been manufacturing M.S. conduit pipes and its production is exempt from payment of Excise Duty in terms of Notification No.202/98-CE dated 20th May, 1988. It, furthermore, appears from the letters addressed by the appellant to the Superintendent, Customs and Central Excise, Rishikesh dated 29th April, 1991 and the Superintendent, Preventive and Intelligence Branch, Central Excise Division, Saharanpur dated 6th June, 1991 that the officers of the Central Excise Department had been visiting the appellant's fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants or not in the said letter, the department cannot deny the fact that they had come to know about the Appellants manufacturing tubes and pipes and availing benefit of exemption and nothing prevented the department from conducting investigation or seeking further information from the Appellants. In view of this we hold that the suppression of facts stopped from 22.01.91 and the extended period is applicable only prior to 22.01.91." 10. Respondent preferred an appeal thereagainst in terms of Section 35-G of the Act which by reason of the impugned judgment was allowed treating the same to be a Reference in terms of old Section 35-G of the Act. 11. The short questions which arise for our consideration are:- i) Whether the said Reference was maintainable; and ii) Whether in the facts and circumstances of this case the extended period of limitation was applicable. 12. Before, however, adverting to said questions, we may notice that the Commissioner of Central Excise, Meerut sought to make the reference to the High Court stating :- " The order passed by the Hon'ble Tribunal does not appear to be legal and correct in so far as it relates to holding that the dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rried out in the said Act. The word `and Salt' was omitted with effect from 28th September, 1996 by Section 70 of the Finance Act, 1996 (Act No.33 of 1996). Section 35-G of the Act provided for a reference. However, the said provision was also substituted by Section 144 of the Finance Act, 2003 (Act No.32 of 2003), relevant provisions whereof read as under:- "35G. Appeal to High Court (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. (2) The Commissioner of Central Excise or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be-- (a) filed within one hundred and eighty days from the date on which the order appealed against is received by the Commissioner of Central Excise or the other party; (b) accompani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt may, if it is not satisfied with the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state the case and to refer it, and on receipt of any such requisition, the Appellate Tribunal, shall state the case and refer it accordingly. (4) Where in the exercise of its powers under sub- section (3), the Appellate Tribunal refuses to state a case which it has been required by an applicant to state, the applicant may, within thirty days from the date on which he receives notice of such refusal, withdraw his application and, if he does so, the fee, if any, paid by him, shall be refunded" 16. The order of the Tribunal having been passed on 3rd March, 2005 an appeal was maintainable to the High Court in terms of the substituted provision and not a reference. Whereas a reference could be made on a question of law, Section 35G of the Act, as it stands, provides for an appeal on a substantial question of law. Such a question of law is required to be formulated by the High Court itself. Even otherwise the question of law purported to have been referred to by the learned Commissioner of Central Excise would have been maintainable provided a substa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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