IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Excise Reference No. 17 of 2001 Date of decision: 16.09.2008 Commissioner, Central Excise, Chandigarh … Petitioner. Versus M/s J.K.Leatherite Ltd., Mehatpur,. … Respondent Coram The Hon’ble Mr.Justice Deepak Gupta, J. The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting?1 No. For the petitioner: Mr. Sandeep Sharma, Assistant Solicitor General of India. For the respondent. None. Per Deepak Gupta, J. (Oral) On the last date of hearing this Court had passed a detailed order, which reads as follows:- “The impugned order is based on the final order No. A/1047/97- NB dated 21.10.1997, which is purported to have been passed in the case of the respondent-assessee itself. According to the averments made in the appeal the aforesaid decision is subject matter of a reference made to the Punjab and Haryana High Court. The appellant is directed to place on record the final decision, if any, taken on the said reference. In case, the reference has not been decided, the department shall file an affidavit before this court stating therein the reference number and give details to show that in fact, such a reference is actually pending before the Punjab and Haryana High Court. In case, no such affidavit is filed, it shall be presumed that no such reference is pending. Shri Sandeep Sharma, learned Assistant Solicitor General of India, prays for and is granted four weeks time to file the affidavit. List in the week commencing from 15th September, 2008.” 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 The learned Tribunal in its order dated 29th December, 2000 has observed as follows:- “The contention of the revenue is that in terms of Notification No.217/86 dated 1.3.1986, the PVC film/sheet, if captively consumed in the manufacture of laminated fabric of chapter 59, are exempt from payment of duty, hence, the respondents could not pay duty on their own. The contention of the revenue is that the decision of the Tribunal in respondent’s own case, vide final order No. A/1047/97-NG dated 21.10.1997, is not accepted by the revenue and a reference application has been filed. The revenue has not produced any order or direction, which stays the operation of the earlier order passed in respondent’s own case. Therefore, in view of the above decision of the Tribunal, we find no infirmity in the impugned order. The appeal is rejected.” It is clear from the above observation that no material was placed before the learned Tribunal to show that a reference had actually been filed or that any stay order was obtained. In the grounds of appeal filed before this Court one of the submissions made by the department, reads as follows:- “Then the department filed appeal before the Hon’ble CEGAT on the grounds that the relied upon decision in the party’s own similar case has not been accepted by the department and Reference Application has been filed and the Hon’ble CEGAT vide Reference Order No. R/141/98-NB(DB) dated 13.11.1998 had ordered Reference of statement of facts in the case to the Punjab and Haryana High Court, Chandigarh.” This appeal was filed as far back in the year 2001. Till date no material has been placed on record to show that any reference was actually filed before the Punjab and Haryana High Court. Despite the last order dated 11th August, 2008 no affidavit has been filed in this regard. Therefore, we have no other option but to proceed on the basis that no 3 such reference is pending. Since the order of the learned Tribunal is based on earlier order which does not appear to have been challenged by the revenue, there is no merit in the petition, which is accordingly rejected. ( Deepak Gupta ), J. 16th September, 2008 ( V.K.Ahuja ), J. ™