TMI Blog2002 (5) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... in Section 2(b) of the Central Excise and Salt Act, 1944? (ii) Whether in view of the contents declared by assessee being found totally different on testing of the samples, it would still not amount to mis-declaration/mis-statement under Section 11A of the Central Excises and Salt Act, 1944? 3.Both the above questions are said to be arising out of the Tribunal's order dated 10-3-1997, allowing the appeal filed by the respondent-assessee. 4.The application filed by the Revenue under Section 35G(1) was rejected on the ground that as the dispute relates to the classification of the commodity, in question, no reference can be made of such question and therefore, the application was not maintainable. The same contention has been raised be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred before the Collector of the Central Excise (Appeals). That appeal was dismissed on 31-10-1988. The order of the Collector, Central Excise Appeal was subjected to the further appeal before the Customs, Excise Gold (Control) Appellate Tribunal. 8.Before the Tribunal, the appellant, apart from raising objections against the order on merits, also urged that the show cause notice dated 28-2-1985 was issued by the Superintendent, raising the demand for a period beyond the period of six months and since it was adjudicated by the Asstt. Collector, same is not sustainable in the eye of law. It was contended that according to Section 11A of the Act, the Collector, Central Excise was the only authority who was empowered to issue show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to classification of articles or applicability of rate is required to be decided by this Court in reference. Nor any question relating to classification or rate has been suggested by the applicant for making reference to this Court. 11.In these circumstances, we are of the opinion that the preliminary objection raised by the respondent is not maintainable. The application under Section 35G(1) has therefore been erroneously rejected by the Tribunal solely on the ground that it is not maintainable under Section 35G because of the prohibition against making any reference relating to any question of law, relating to classification of article or determination of rate of Duty. 12.So far as the question relating to authority of the Superinten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o authority to issue such notice beyond the period of six months on the relevant date. So far as second suggested question is concerned, it, in our opinion, also does arise out of the Tribunal's order. However, it does not give out the complete controversy. 16.The basis of issuance of show cause notice is stated to be result of samples drawn on 18-4-1984 and 19-4-1984. It was on that basis it was argued by the Revenue that in the words of Tribunal itself :- "As regards limitation, he submitted that samples were drawn on 18-4-1984 and 19-4-1984 and on the basis of the result of samples, department was justified in raising the demand invoking larger period". 17.Apparently, whether in such circumstances, without using the term misrepre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is concerned, it, in our opinion, also does arise out of the Tribunal's order. However, it does not give out the complete controversy. 20.The basis of issuance of show cause notice is stated to be result of samples drawn on 18-4-1984 and 19-4-1984. It was on that basis it was argued by the Revenue that in the words of Tribunal itself :- "As regards limitation, he submitted that samples were drawn on 18-4-1984 and 19-4-1984 and on the basis of the result of samples, department was justified in raising the demand invoking larger period". 21.Apparently, whether in such circumstances, without using the term misrepresentation or misdeclaration whether an inference to that effect can be drawn so as to invite applicability of proviso to Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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