Customs, Excise and Gold Tribunal - Delhi
Cce. Meerut-Ii vs M/S. D.S.M. Sugar Mills on 20 April, 2001
Equivalent citations: 2001(132)ELT250(TRI-DEL)
ORDER
V.K. Agrawal
1. This is an application filed by Commissioner, Central Excise, Meerut for referring the following question to the High Court, arising out of Tribunal's Final Order No.A/420/98-NB(S) dated 21.4.98:-
"Whether M.S. Rounds bars. M.S. Platers, H.R. Plates, Shapes and Sections etc. would fall under the category of items given the explanation 1(b) of Rule 570 of CER 1944 as it stood at the relevant period and would consequently become eligible for taking credit under modvat scheme on capital goods?"
2. I heard Shri J. Singh, learned D.R., and Shri Ashok Sagar, leaned Advocate for Respondents, M/s. D.S.M. Sugar Ltd. The learned D.R. submitted that the Tribunal, vide Final Order No. A/420/98-NB(S), allowed Modvat Credit in respect of M.S. Round Bar, M.S. Plates, H.R. Plates, Shapes and Sections holding them to be raw material for boiler, new turbine, molasses tank, etc.; that these materials are not used as such but are used as intermediate product for manufacturing accessories/components of capital goods on which on excise is paid; that these items are also used for fabrication, installation and fixing of capital goods as items of building material and as such no Modvat Credit is admissible. Reliance was placed on the decision in the case of Otis Elevator Co. (I) Ltd. vs. C.C., Bombay, 1996 (86) ELT 146 (T). On the other hand Shri Ashok Sagar, learned Advocate, submitted that the averments made in Reference Applicable does not arise out of decision in question as it was never the case of the Department that the impugned materials were used as building materials.
3. I have considered the submissions of both the sides. It was the finding of the Adjudicating Authority in Adjudication Order No. 202/95 dated 5.9.95 that the impugned goods were used as raw material of new boiler, new turbine, molasses tank, etc. and the Modvat Credit was denied on the ground that the raw materials used for fabrication of machinery are not capital goods under Rule 57Q of the Central Excise Rules. The finding of the Commissioner (Appeals) is also to that effect as he has mentioned that these goods "are raw materials needed for fabricating the items New boiler .... etc.." At no stage it was the contention of the Department that the impugned items were used as building materials. A reference can not be made on a point which does not emerge out of the records of the case. Further, as these goods are admittedly used for fabrication of capital goods which in turn are used for producing or processing of the goods, these are eligible goods for the Modvat Credit. Accordingly no question of law arises in the present matter and Reference Application is rejected.