Customs, Excise and Gold Tribunal - Bangalore
Commissioner Of C. Excise, Belgaum vs M/S Panyam Cements & Mineral Industries ... on 17 September, 2001
Equivalent citations: 2001(78)ECC318, 2001(134)ELT767(TRI-BANG)
ORDER Shri G.A. Brahma Deva, Member (J)
1. This reference application is filed by the Revenue, None appeared on behalf of the Respondents. However there was a request for an adjournment. On going through the issue involved herein I find that the matter itself can be disposed of in their absence. Accordingly I proceed to pass this order after hearing Smt. Radha Arun, SDR appearing for the Revenue.
2. This reference application is field by the Revenue under Section 35G of the Central Excise Ace, 1944. This reference application is field by the Department with reference to the Final Order No. 1544 - 1546/99 dt. 25-6-99 on the ground that the following questions are to be referred to the High Court for its considered opinion:-
(i) Whether Hon'ble CEGAT's judgement in the case of NGEF Ltd. (1995) (77) ELT 238) viewing that 'transformer oil' cannot be considered a component of the transformer, can be regarded as overruled by the CEGAT's larger bench decision in 1996 (82) ELT 575 (T) in the case of Ramkrishna Steel Industries Ltd. Vs. CCE Madras, 1996 (86) ELT 613 (T) in the case of Union Carbide (India) Ltd. Va. CCE Calcutta I and 1999 (108) ELT 47 (T) in the case of Jawahar Mills Ltd. Vs. CCE Coimbatore, for the purpose of treating the 'transformer oil' as an eligible Modvat input under the then Rule 57A, towards the manufacture of 'calcium carbide' and 'acetylene black' even when the transformer oil was only used for smooth functioning of transformer. Whether such view can legally be taken when the aforesaid three judgements of the larger bench actually dealt with different products, issues and nuances of the facts.
(ii) Can 'lubricating oil' and 'transformer oil' used for the smooth functioning of a machinery and a transformer respectively, be treated as "capital goods" when during the relevant time, Rule 57Q read with clauses (a) and (b) of its Explanation 1, inter-alia, stipulated that to qualify as capital goods the machines and equipment or their components/parts should be used for producing or processing of any goods or for bringing about any change in any substance for the manufacture of final products.
(iii) Can 'lubricating oil' used for smooth functioning of machinery and not directly used in or in relation to the manufacture of the final products be taken as an eligible input for Modvat benefit in terms of Rule 57A (as it stood during the relevant time).
(iv) Can 'transformer oil' be treated as "capital goods" under Rule 57Q (as it stood at the relevant time) when only the "transformer (of power handling capacity exceeding 75 KVA falling under heading 8504" (and not transformer oil) were included in the Explanation (1) (d) of Rule 57Q vide Notification No. 11/95 CE (NT) dated 16.03.95.
3. In the Cross Objections, it was submitted by the party that the Tribunal Final Order No. 1544-1546/99 dated 25-6-99 passed prior to 1st July 99 was forwarded both to the factory and the Commissioner of Central Excise, Belgaum with the Tribunal's letter E/1856/97 dated 28-06-99/09-07-99. The said letter of the Tribunal was received by the Respondents on 31-07-99. Accordingly the Commissioner of Central Excise, Belgaum should have also received the same by 31-07-99 itself. Against Serial No 06 of the Reference Application in Form E.A.-6 of the Department it has been mentioned that the Notice was served on the applicant on 15-9-99. As the Reference Application in this case has been preferred by the Deputy Commissioner of Central Excise, Bellary, evidently he should have mentioned the date on which he has received the communication through his Commissioner. it was also submission of the party that Section 35G of the Central Excise Act, 1944 contemplates filing of Reference Application within 60 days of receipt of the order of the Tribunal by the Commissioner. It is seen from the Rubber Stamp on the department E.A-6 Application that the reference application was received by the Tribunal only on 12-11-99 i.e. long after the expiry of 60 days from the date of receipt of the order by the Commissioner.
4. Smt. Radha Arun, SDR appearing for the Revenue submitted that the Tribunal order has been received by the department only on 15-09-99 and the reference application was filed before the Tribunal on 12-11-99 and accordingly there was no delay in presenting the reference application before the Tribunal.
5. The party also contended that as per Section 35G of the Central Excise Act, 1944 the reference application has to be field by the Commissioner within 60 days on receipt of the Tribunal Order. In the instant case, the reference application has been field by the Deputy Commissioner through authorisation given by the Commissioner. In the instant case the Commissioner has no power to give authorisation to the Deputy Commissioner. He also relied upon the decision of the Tribunal in the case of Commissioner of Central Excise, Allahabad Vs. Technical Associates reported in 2000 (119) ELT 133 (T). In that case it was held that Reference Application filed by the Assistant Commissioner is not maintainable since the Commissioner has no power to authorise the Asst. Commissioner to file the subject application.
6. I have carefully considered the submissions made by both sides on maintainability of the reference application. I am not convinced with the pleas taken by the party that reference application was received by the Tribunal long after the expiry of 60 days from the receipt of the order by the Commissioner. As can be seen from the records that Tribunal order No. 1544-1546/99 dt. 25-6-99 has been received by the department on 15.9.99 but the reference application was filed before the Tribunal on 12-11-99. Accordingly there was no delay in filing the reference application as it was rightly pointed out by the departmental representative. Apart from this, I find that there is lot of force in the arguments advanced on behalf of the respondents that Commissioner has no power to authorise the Deputy Commissioner to file the reference application. It was also brought to my notice that eligibility of the Modvat credit on item in question has already been considered by the Tribunal in series of cases including in the case of Modi Rubber Ltd. reported in 2000 (119) ELT 197 holding that 'lubricating oil' is an eligible input in terms of Rule 57A of the Central Excise Rules. Without going into the merits of the reference application, I find that reference application as such is not maintainable since it was filed by the Deputy Commissioner. It is settled position now that reference application should be field by the Commissioner. he has no power to authorise any officer subordinate to him to file reference application. The reference application should have been filed by him as contemplated under Section 35G of the Central Excise Act. In the facts and circumstances and as per the law following the precedent, reference application is not maintainable. Accordingly reference application is hereby rejected.
(Pronounced and dictated in the open court)