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TMI Blog2012 (7) TMI 511X X X X Extracts X X X X X X X X Extracts X X X X ..... ondly it arise out of the case and third it is a referable question by the Tribunal to this Court for its answer on merit - as order of adjudicating authority was rightly set aside by the Commissioner of appeal and Tribunal no substantial question of law arises. - C E R No 2 of 2001 - - - Dated:- 18-6-2012 - MR ABHAY MANOHAR SAPRE, MR G MINHAJUDDIN, JJ. Mr Manish Sharma Advocate for the applicant Mr B D Guru Advocate for the respondent Judgement ORDER FORM OF APPLICATION TO THE HIGH COURT UNDER SECTION 35-H(1) OF THE CENTRAL EXCISE ACT, 1944. The following order of the Court was passed by Abhay Manohar Sapre, J:- 1. This is an application made under Section 35 -(H)(1) of the Central Excise Act by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicating authority without issuing any show cause notice held that as no chapter heading were mentioned in request of components/spare parts, therefore, the credit is not admissible on the capital goods mentioned in the declaration. The respondents filed appeal and the Commissioner (Appeals) allow the appeal with the following observations: "From the above I find that the impugned order is not sustainable not only on the merits of the case but also legally as disallowing of the credit at the declaration stage by the adjudicating authority is without authority of law. In case of the appellants having taken wrong credits, the procedure for denial of such writ credit are providing for under Rule 57Q of Central Excise Rules which are not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law and nor referable one and hence the application deserves to be dismissed. 6. As would be clear from the facts mentioned in the impugned order quoted supra, it is a case where adjudicating authority declined to allow the assessee - a company engaged in manufacturing of certain goods to claim modavat on certain capital goods, which according to the assessee were consumed in manufacturing process. This was done by the adjudicating authority without giving to an assessee any show cause notice .When it was challenged by the assessee before the Commissioner of Appeal by filing appeal against the order of adjudicating authority then while allowing the assessee's appeal, it was held (it is quoted supra) that in such circumstances,, the adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of adjudicating authority was rightly set aside by the Commissioner of appeal and Tribunal. 8. We concur with such view taken by the two authorities below and find no referable question of law arising on such findings for being answered on merits in our reference jurisdiction. 9. It is a settled principal of law that in order to allow the application made for calling reference under Section 35( H), ibid, it is necessary for this Court to record a finding that question of law proposed by the applicant is a question of law, secondly it arise out of the case and third it is a referable question by the Tribunal to this Court for its answer on merit. 10. If the question of law proposed is found to be either question of fact or not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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