Customs, Excise and Gold Tribunal - Delhi
Commissioner Of C. Ex. vs Hindalco Industries Ltd. on 12 March, 1999
Equivalent citations: 1999(113)ELT611(TRI-DEL)
ORDER S.S. Kang, Member (J)
1. This Reference application is filed by the Revenue for referring the following question of law to the Hon'ble High Court for their valuable opinion arising out of their Final Order Nos. A/2359-75/96-NB, dated 12-9-1996:
"Whether items namely Refral Dip Tube Float; Refractory Bricks/Refractory Cements; Asbestos Magnesia and ACC Calundum/High Alumina Refractory Cement; and Laboratory Chemicals said to be used for testing of raw materials and maintenance /running of Plant and machinery required for production of Aluminium and products thereof can be covered under the expression- 'in or in relation to the manufacture of final product' and as such can they be considered as inputs eligible for Modvat credit under Rule 57A of - the Central Excise Rules, 1944 or Not?"
The learned JDR appearing on behalf of the appellant submits that the Tribunal passed the Final Order following the ratio of the Larger Bench decision of the Tribunal in the case of Union Carbide India Ltd., Calcutta and Ors. v. Collector of Central Excise, Calcutta-I & Ors, reported in 1996 (15) RLT 144 (CEGAT-NB). He submits that the Tribunal in the case of Union Carbide India Ltd. made a reference to the Hon'ble High Court of Bombay. He, therefore, prays that this Reference application be allowed and the question of law be referred to the Hon'ble High Court. The learned Counsel appearing on behalf of M/s. Hindalco Industries Ltd. opposed the request of the applicant on the ground that the Tribunal in their own case dismissed the Reference application filed by the Revenue vide Order No. E/Ref./185/97-NB, dated 19-9-1997 1997 (96) E.L.T. 328 (Tribunal) and in another case Final Order No. E/Ref./189/97-NB(DB), dated 25-9-1997. He, therefore, prays that the application be dismissed.
2. Heard both sides.
3. The contention of the Revenue that in the present case Final order was passed relying on the decision of the Tribunal in the case of Union Carbide India Ltd., Calcutta and Ors. v. Collector of Central Excise, Calcutta-I and Ors. and the Tribunal referred the question of law to the Hon'ble Bombay High Court Vide Order Nos. R/24-25/97-NB, dated 23-4-1997 in the case of Commissioner of Central Excise, Mumbai-III v. B.K. Paper Mills. We find that in the case of Commissioner of Central Excise, Mumbai-III v. B.K. Paper Mills (supra), the following question of law was referred to the Hon'ble High Court:
"(a) Whether in the light of the above discussion, the said products can be treated as "input" in terms of Rule 57A read with exclusion Clause (i) of the Explanation read with Rule 57G of Central Excise Rules, 1944."
(b) Whether the said product fulfils the description given under Explanation 57A."
In the present case the Revenue wants the following question of law to be referred to the Hon'ble High Court:
"Whether item namely Refral Dip Tube Float; Refractory Bricks/Refractory Cements; Asbestos Magnesia and ACC Calundum High Alumina Refractory Cement; and Laboratory Chemicals said to be used for testing of raw materials and maintenance/running of Plant and machinery required for production of Aluminium and products thereof can be covered under the expression - "in or in relation to the manufacture of final product" and as such can they be considered as inputs eligible for Modvat credit under Rule 57A of the Central Excise Rules, 1944 or Not"
4. From the above it is clear that in the present case the question of law is totally different which was in the case of B.K. Paper Mills (Supra).
5. Further we find that the Tribunal Vide Final Order Nos. E/Ref./185/97-NB, dated 19-9-1997 1997 (96) E.C.T. 328 (T) and E/Ref/189/97-NB, dated 25-9-1997 rejected the Reference application filed by the Revenue whereby the Revenue made the request to refer the similar question of law as in the present application. As the Tribunal had already rejected the Reference application of the Revenue on similar facts, therefore, we do not find any merit in the present case and the same is rejected.