IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929 CE.Ref..No. 2 of 2005() ----------------------- AGAINST THE ORDER DATED 09/04/2003 IN APPEAL E/740/02 & 742/02 PASSED BY THE CUSTOMS, EXCISE & GOLD CONTROL APPELLATE TRIBUNAL, SOUTH ZONAL BENCH AT BANGALORE .................... : APPELLANT. --------------------------- THE COMMISSIONER, CENTRAL EXCISE & CUSTOMS, CALICUT COMMISSIONERATE, KOZHIKODE. BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR RESPONDENTS: ------------- M/S.AGNI STEELS (P)LTD., NATTUKAL P.O. PALAKKAD. KERALA. BY ADV. SRI.C.S.GOPALAKRISHNAN NAIR SMT.CHANDINI G.NAIR THIS CENTRAL EXCISE REFERENCE HAVING BEEN FINALLY HEARD ON 17/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & T.R.RAMACHANDRAN NAIR, JJ. ---------------------------------------------------------- Central Excise Reference Application No. 2 of 2005 ----------------------------------------------------------- Dated, this the 17th day of January, 2008 J U D G M E N T C.N.Ramachandran Nair, J. This application filed by the Commissioner of Central Excise is for a direction to the Tribunal to refer the questions of law arising out of the order of the Tribunal. 2. Heard learned Central Government Standing Counsel appearing for the applicant and learned counsel appearing for respondent. 3. The three questions sought for reference pertain to penalty and interest demanded from respondent for non-payment of duty are in terms of Rule 96ZO(3) of the Central Excise Rules. We find that the duty was determined based on production capacity on application by the respondent assessee. However, admittedly, respondent has not remitted the duty in time for April and May 1998. The provisions of Section 96ZO(3)(ii) are apparently mandatory in nature leaving no discretion to the Officer. So much so, we do not think the Tribunal can reduce the penalty or interest without violation to the Rules. The questions decided by the CERA No.2/2005 -2- Tribunal involve interpretation of Rule and are therefore pure questions of law. We, therefore, dispose of the reference application by directing the Tribunal to draw up statement of the case and refer all the three questions, reference of which is sought in the application for decision by this Court, along with annexures. (C.N.RAMACHANDRAN NAIR, JUDGE) (T.R.RAMACHANDRAN NAIR, JUDGE) jg