Per K. Sankararaman :

Commissioner of Central Excise, Jaipur has filed this reference application stating that the following questions of law have arisen out of Final Order No. 243 to 245/97-C dated 25.4.97, which require to be referred to the High Court for their advice.

"1. Whether the recycled Caprolactum obtained from the Waste generated during the weaving of fabrics having the characteristics and use of `Caprolactum' and which is specifically mentioned at Sub Heading 2933.10 is not excisable?

2. Whether the exemption under Notification No. 36/85 dated 17.3.85 available on Caprolactum recovered only from Nylon Polymer Waste during the manufacture of Nylon Yarn can be extended beyond the scope of its specific wording to cover this product generated during the recycling of the Waste, which is arising during the manufacture of Fabrics at the weaving stage?

2. When the matter came up for hearing, the Bench put a question to both the sides, whether the order does not relate to a question of rate of duty, in which case no reference would lie under Section 35-G of the Central Excise Act, 1944.

3. As per Explanation under Section 35-G of the Act, an application to the Tribunal may be made for reference to High Court of any question of law arising out of an order of the Tribunal passed under Section 35-C 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 purposes of assessment. The scope of the expression determination of rate of duty in relation to any goods for the purpose of assessment has been set out in the Explanation Clause under sub-section (5) of Section 35-E of the Act according to which the said determination will include determination of a question whether any goods fall under a particular heading or sub-heading of the Schedule to the Central Excise Tariff Act, 1985 or that any goods are or are not covered by a particular notification issued by the Central Government. Though the said explanation which appears under sub-section (5) of Section 35-D of the Act states that the same is for the purposes of that sub-section, it will equally apply while applying Section 35-G also. That was the view taken by the Supreme Court in Navin Chemical Mfg. & Trading Co. Ltd. Vs. Collector of Customs, 1993 (68) ELT 3 while considering the scope of the parallel provision under the Customs Act, 1962, namely Section 130 relating to statement of case to High Court. It was held therein that although the Explanation under sub-section (5) of Section 130 expressly confined the definition of the expression to that sub-section, it is proper that the said expression used in other parts of the Customs Act should be interpreted similarly. Applying the said decision for interpreting the scope of Section 35-G of the Act under which the present application has been filed, the first question whether "Caprolactum obtained from waste in the respondent's factory in the course of manufacture is specifically covered by Tariff sub-heading 2933.10 and hence whether it is not excisable involves a question involving rate of duty applicable for the goods and hence excluded from the scope of cases where reference can be made to a High Court.

4. The second question made in the reference application involves the applicability or otherwise of exemption notification 36/85 dated 17.3.85. Such a question also involves the rate of duty and hence not covered by Section 35-G. On this preliminary ground, we find that the application is not maintainable. We dismiss the same.