( 1 ) FERDINO I. Rebello,j. Parties agree that instead of asking for a reference from the Tribunal, the court itself can dispose of the questions which have been raised, as if referred by the Tribunal. The Applicant herein had applied by way of Reference before the Sale Tax tribunal for referring the following questions to this court:

(a) Whether on a true and proper construction of the provisions of the Sick Industrial Companies (Special provisions) Act, 1985, read with the Approved rehabilitation Scheme by BIFR, ht Tribunal was justified in not following the said order? (b) Whether on the facts and under the circumstances of the case, the Tribunal was justified in retaining the quantum of interest at 25% of the amount of the interest and penalty, though directed to be waived in entirety without any condition? (c) Whether on the facts and under the circumstances of the case, the Tribunal was justified in not exercising its discretionary power judiciously by remitting 100% interest and penalty as per the direction of the BIFR through Approved Rehabilitation Scheme? (d) Whether on the facts and under the circumstances of the case, the Tribunal was justified in overlooking the legal position that the provisions of the Sick industrial Companies (Special Provisions) Act, 1985, had an overriding effect on all State enactments?

( 2 ) THE tribunal by its order dated 19. 7. 2008 declined to make reference. Consequent the present application. The order of assessment is for the financial year 1999-2000. The original order of the A. O. is dated 28. 2. 2003. It provided for interest and penalty. The applicant herein aggrieved preferred an appeal which appeal came to be dismissed on 29. 1. 2005 with a small variation in so far as amount of interest is concerned. The applicant being aggrieved preferred the second appeal before the tribunal.

( 3 ) WHEN the appeal came up before the tribunal, the applicant which was a sick company had moved the B. I. F. R. Under the provisions of the Sick Industrial companies (Special Provisions) Act, 1985 (hereinafter referred to as SICA Act ). The board after considering the submissions of the various parties by its order dated 31. 10. 2007 was pleased to sanction the scheme. In so far a s the sales tax department is concerned, it waived the interest and penalty upto the period 31. 3. 2007.

( 4 ) WHEN the appeal came up for hearing it was the submission on behalf of the applicant herein that considering the provisions of the SICA Act the tribunal ought to have taken a note of the same. The learned tribunal after considering the contentions advanced on behalf of the applicants herein was pleased to reduce the amount of interest and also set aside the amount of penalty. However, chose not to follow the scheme as sanctioned by B. I. F. R. Reference sought as already pointed out was rejected. Hence, the present application.

( 5 ) SECTION 32 of SICSP Act reads as under : 32. Effect of the Act on other laws. (1) The provisions of this Act and of any rules or schemes made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law except the provisions of the Foreign Exchange Regulation act, 1973 (46 of 1973) and the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976) for the time being in force or in the memorandum or Articles of Association of an industrial company or in any other instrument having effect by virtue of any law other than this Act. On behalf of the respondents the learned counsel sought to make a submission that before the scheme is sanctioned, the concerned authority must be heard. In the instant case, the power to waive interest and or penalty is the commissioner. No notice was given to the Commissioner and consequently the scheme as sanctioned being without hearing and or consent of the Commissioner of sales Tax is not binding on the authorities under the Act.

( 6 ) WE have seen the record as also the scheme. In Para 14 of the Scheme it is clearl

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