2005 (8) TMI 122 - HC - Central Excise

Summary

Issues:
1. Recall of order dated 25-7-2003 dismissing a petition in default.
2. Condonation of delay in filing a reference petition.
3. Interpretation of Section 35H(1) of the Central Excise Act, 1944 regarding Modvat credit on input Sulphur.

Recall of Order:
In the case, an application was filed for the recall of an order dated 25-7-2003, which dismissed a petition in default. The court allowed the application, supported by an affidavit, and recalled the order, thereby restoring the petition to its original position.

Condonation of Delay:
Another issue involved the condonation of a one-day delay in filing a reference petition. The court, based on the reasons presented in the application, granted the condonation of the delay, disposing of the application accordingly.

Interpretation of Section 35H(1) - Modvat Credit:
The main case revolved around a petition under Section 35H(1) of the Central Excise Act, 1944, where the Revenue sought a direction to the Tribunal to refer a question regarding Modvat credit on Sulphur. The dispute arose as the assessee had not maintained a mandatory register, leading to the disallowance of the Modvat credit claim and imposition of a penalty. The Tribunal, however, allowed the appeal, stating that although the register was not maintained as required, all necessary details for claiming the credit were available in other records maintained by the assessee.

Analysis:
The court analyzed the Tribunal's decision and held that the findings were factual, not raising any legal question. Despite the technical default in maintaining the register, since all essential particulars for claiming the Modvat credit were present in other records without any defects, the claim could not be denied on technical grounds. The court cited precedent to support its decision and ultimately dismissed the petition, affirming the Tribunal's decision to allow the Modvat credit claim on Sulphur.