The relevant provisions for dealing with
reference applications and referring a question or questions
of law to the High Court are (a) Section 130 of the Customs
Act, (b) Section 35G of the Central Excise Act, and (c) Section
82B of the Gold (Control) Act. Some further provisions relating
to the drawing up of a Statement of Case and referring a question
or questions of law to the High Court are as follows :-
The Tribunal has to refer the question(s) of law along
with the Statement of Case drawn up to the High Court
concerned within 120 days of the receipt of the reference
application. For this purpose, on the analogy of decisions
under the Income Tax Act, the "High Court concerned"
is the High Court within whose jurisdiction the authority
passing the original order is situated.
If the Tribunal refuses to make a reference, the applicant
may, within six months of communication of such refusal,
apply to the High Court for directing the Tribunal to
refer the question(s) of law to that High Court. The High
Court may, if it deems fit, direct the Tribunal to draw
up a Statement of the Case and refer the question(s) of
law to it. Thereupon the Tribunal shall draw up the Statement
of Case and refer the question(s) of law to that High
The High Court has the Power to get the Statement of Case
amended or altered by referring it back to the Appellate
Tribunal (Section 130B of the Customs Act and the corresponding
provisons of the other Acts).
On a application by a party for making a reference in terms
of any of the above provisions action should be taken to scrutinize
the reference application as set out in Chapter 3. The guidelines
for fixing reference applications for hearing are contained
in Chanter 9.
If the Bench decides that a reference should be made, the
Bench will draft a Statement of Case, which will be circulated
to the parties. A further hearing (Appendix 40) will be fixed
at which the draft Statement of Case will be finalised.
The next step will be to compile the papers and send the reference
to the High Court. At this stage the party making the reference
application will be required to file certified copies of the
documents which are to be annexed to the Statement of the
Case. It is the duty of the Bench Clerk to check whether the
requisite number of the certified copies of the annexures
are available or not. If not, he should bring this to the
notice of the Bench which will fix the final date for filing
the certified copies. If he fails to do so, the Statement
may be forwarded without those annexures.