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Judgment
B.P. Dharmadhikari, J.—This is an application u/s 35H(1) of the Central Excise Act, 1944 by the Commissioner of Customs and Central Excise for calling up reference upon a question of law as formulated in Annexure II. The Assessee has filed cross objection as contemplated by Section 35H(3). In the impugned order, the appellate Tribunal has relied upon the Judgment delivered by its Bench in the case of Mustan Teherbhai vs. Collector of Customs, Ahmedabad, reported at [2000 (125) ELT 1001]. Learned Asst. Solicitor General of India has pointed out to us that Hon''ble Apex Court has overruled the said Judgment reported at 2001 (133) E.L.T. 524 (S.C.) and remanded the matter back for fresh consideration by inviting attention to the Judgment of Bombay High Court delivered on 5.2.91 in the case of M/s. Bajnath Meharam vs. Union of India and ors., (Writ Petition No.1478/1983). It is further pointed out that as per information collected by him from the website of the High Court, Writ Petition No.1478/1983 was stated to be pending for final hearing on 15.8.08.
Advocate Sonak has invited attention to cross objection filed by respondent in the matter and he wants to address this Court also on merits of the controversy to show that calling up a reference is not necessary.
However, developments above clearly show that reference as contemplated by Section 35H needs to be called for and question of law as formulated at Annexure II therefore, needs to be decided. Accordingly, we formulate the following question of law.
Whether manufacture of excisable goods in India in Customs warehousing bond will amount to manufacture of excisable goods in India and fall within the purview of Central Excise Act attracting duty u/s 3 of Central Excise Act, 1944 in the absence of any specific provision of exempting the process of manufacture of excisable goods under Custom bond from the Central Excise purview ?
Appellate Tribunal is, accordingly, directed to refer the question of law within 120 days of the receipt of this direction by drawing up a statement of the case, as contemplated u/s 35H(4) of the Central Excise Act, 1944. After the reference is received, cross objection filed by the respondent-assessee be placed along with it for final hearing. Advocate Sonak states that in cross objection, maintainability of the application for calling of reference i.e. one u/s 35BH(1) is itself challenged. We leave the issue open for consideration at appropriate stage. These proceedings are disposed of accordingly.