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TMI Blog1995 (8) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... hich no duty of excise is paid by the assessee, the Modvat credit availed by them on Duplex Board is not admissible. The prayer at the end of the affidavit of the Collector accompanying the Application is as follows :- It is, therefore, prayed that the reference application may please be admitted and the CEGAT s final order No. A/1091/94-NRB, dated 23-12-1994 may be reviewed by the Hon ble Tribunal for correct decision of the issue as per provisions made under the Central Excise Rules, 1944. The Hon ble Tribunal may be pleased to consider the reference application, re-examine the matter and pass a detailed order in this case and communicate the same to the Collector of Central Excise, 38, Mahatma Gandhi Marg. So help me God." As however the Reference Application has been filed in the prescribed form EA6, the request in terms of Sl. No. 9 thereof is that the statement of the case be drawn up and the question of law referred to the High Court. Apparently the prayer in the Collector s affidavit ignores the statutory requirements and scope of a reference under Section 35G. We, however, proceed to deal with the contents of the application on merits. 2. The question posed fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal order. There is no point made in the Reference Application about Rule 57-I and only in his arguments has the learned Departmental Representative raised that point. But even this point does not arise out of the Tribunal s order which has been based not only on the Ashwin Vanaspati decision of the Tribunal but other authoritative pronouncements of the Madras High Court and of Supreme Court which have been referred to in the order. These authorities are :- 1. 1993 (63) E.L.T. 3 (Mad.) - Ponds India v. Collector of Central Excise. 2. 1989 (43) E.L.T. 201 - Collector of Central Excise v. East Paper Industries Ltd. 3. 1965 (16) S.T.C. 563 - J.K. Cotton Spinning and Weaving Mills v. Sales Tax Officers. 4. AIR 1973 (SC) 705 - Lt. Governor Delhi v. Ganesh Flour Mills. The scope of the terms used in the manufacture of and packaging materials has been fully spelt out in the Madras High Court judgment in the first mentioned case which in turn has relied upon various authorities including the Supreme Court judgments in East End Paper Industries Limited and J.K. Cotton Spinning and Weaving Mills Co. limited case. That apart, the Tribunal has also relied upon the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls and that the packaging materials are ready to use articles such as containers, cations, etc. is incorrect. In that case modvat credit was held to be admissible for the inputs, HDPE, DPE and PVC granules used for making plastic jars etc. used as containers for the final products, shampoo, talcum powder, cream, etc. The plastic jars were exempt from duty and these were made, not by Ponds in their own factory, but got manufactured by them through job workers. The case is on all fours with the present matter and the decision had been correctly applied while deciding the case. As had been discussed in the order under reference, the expression packaging materials finds a mention in the Explanation to Rule 57A while defining the scope of the term inputs . This latter expression in turn stands for goods used in or in relation to the manufacture of the final products. The moot question in the case was whether Duplex Board is used in or in relation to the manufacture of torches. No doubt, it is, though passing through the stage of cartons. There is no requirement that it should be used directly or in an one shot process. In an industrial process it is seldom that goods are manufactured t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h use of packing they could undergo some change in shape or from. While affirming this finding the Supreme Court observed that the fact that the tin sheets and plates have t be subjected to the process of cutting and moulding into tin containers would not take them out of the category of materials intended for being used for the packing of goods for sale. It was held by the Tribunal in the order under reference that the underlined words correspond to the expression packaging materials used in Rule 57A. These decisions will totally demolish the stand of the department that the expression packaging materials will only mean ready to use packing articles. 7. As the Tribunal order is thus found to be based on the Supreme Court decisions which have also been followed by the Madras High Court and a larger Bench of the Tribunal there is no question of law requiring a reference to be made to the High Court. We find the application has been filed without taking note of the reasons spelt out in the order and the authorities cited. The observation of the Supreme Court that the Tribunal need not refer questions to the High Court in certain situations are spelt out in their decisions which we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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