Per Shri P.C. Jain :

The subject Miscellaneous Application seeks condonation of delay of 25 days in presenting the Reference Application to the Tribunal. The ground taken for seeking condonation is that inadvertently the applicant Commissioner took the matter with the Board for filing an appeal before the Supreme Court on the presumption that the question involved in the Tribunal's order was one of rate of duty and, therefore, an appeal before the Supreme Court was the remedy. This presumption made by the Commissioner's Office, however, was not accepted by the Board's Office and returned the suggestion of the Commissioner by its letter dated 4th June, 1997 that the question involved is not of rate of duty. On receipt of the said letter of the Board, the subject Reference Application has been filed.

2. I have heard both sides. In the peculiar facts and circumstances of the case, I accept the grounds for condonation of delay and allow the Miscellaneous Application. Thereafter, I have proceeded to hear the subject Reference Application.

3. Learned JDR Shri R.K. Roy points out that the following question of law has been raised by the Revenue which according to it arises out of Tribunal's Order dated 10.2.97 :-

"Whether furnishing of document under Section 12A of Central Excise Act, 1944 is sufficient evidence for the assessee to discharge the burden cast on him under Section 12B of Central Excise Act, 1944 to prove that incidence of duty has not been passed on to the consumer for purposes of refund under Section 11B of Central Excise Act, 1944 "?

4. I have heard both sides. Learned JDR has reiterated the grounds for filing the aforesaid Reference Application, namely, that the documents under Section 12A are not sufficient evidence for discharge of the burden cast on the assessee to prove that the incidence of duty has not been passed on to the customer of the excisable goods.

5. Opposing the contention, learned advocate Shri S.K. Bagaria appearing with Shri J. Prasad, learned Consultant for the respondents submits that the question raised is a question of fact and not a question of law because a plain reading of the question itself suggests that whether the documents furnished under Section 12A are sufficient evidence to discharge the burden cast on the assessee. He has also placed reliance on a judgement of the Supreme Court in the case of C.I.T. Vs. Orissa Corporation Pvt. Ltd. reported in 1986 (159) ITR 78. He submits that in the said citation, the Apex Court has observed as follows :-

"If the conclusion is based on some evidences on which a conclusion could be arrived at, no question of law as such arises."

He also relies on Calcutta High Court's (DB) judgement in the case of C.I.T. Vs. Srikrishna reported in 1992 (193) ITR 494 wherein it has been held that the "question of discharge of burden of proof is a question of fact". He also submits that there has been no change in the selling price before and after the increase in rate of duty. He, therefore, submits that the Tribunal has arrived at a correct conclusion that the burden of duty has not been passed on to the customers by the respondents herein.

6. I have carefully considered the pleas advanced from both sides. I agree with the submission of the learned advocate for the respondent that the question involved in the Tribunal's order is a question of fact whether there was sufficient evidence to prove that no burden of duty has been passed by the respondents to its customers. Reliance placed by him on the decision of the Apex Court and of Calcutta High Court are apt in the facts and circumstances. Accordingly, I reject the Reference Application.