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TMI Blog2012 (12) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... hort called `the Tribunal") in final order No. A/606/01-NB (SM). 2. By impugned order, the Tribunal dismissed the appeal filed by the Revenue and in consequence upheld the order passed by the Commissioner of appeals. 3. So the short question that arises for consideration in this reference application is whether any referable legal question arises out of the order passed by the Tribunal for being answered by this Court in its reference jurisdiction and if so whether such question need to be called to this Court to answer on its merits. 4. Facts of the case lie in a narrow compass. 5. The respondent (assessee) is a Company engaged in manufacture and sale of "welding electrodes". The assessee however claimed modvat credit under Rule 57-Q o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case, we are inclined to dismiss the application as in our opinion, the application does not involve any referable question and the one which is proposed is not a referable one by the Tribunal to this Court. Indeed, it stands already decided by the two decisions of the Supreme Court in favour of the assessee as would be clear from our reasoning infra. 8. This is what the Tribunal while answering the issue in favour of the assessee held in Paras 3 and 4:- 3. "The revenue have filed an appeal against the above order of Commissioner (Appeals). I have heard Shri A.K. Jain, JDR for the appellants and Shri S. Manoj, Asst. Manager for the respondents' Company. The ld. representative of the respondents has filed a copy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court or/and High Court then it has to be first referred to by the Authorities/Tribunals and then decision should be rendered on the issue involved in the case keeping in view the law laid down in decided cases. 11. In the case reported in AIR 1990 SC 1893 - (Collector of Central Excise, Calcutta-II v. Eastend Paper Industries Ltd.), the question arose before the Supreme Court as to whether wrapping paper used by the assessee who is engaged in manufacture of "papers" for wrapping their finished goods - paper can be regarded as a process incidental or/and ancillary to completion of main manufactured product or not?. Justice Sabyasachi Mukherjee (as his Lordship then was) speaking for the Court held that such activity is essentially ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rketable in the condition in which it emerges. Marketable means saleable. The test of classification is, how are the goods known in the market. These tests have been laid down by this Court in a number of judgments including Moti Laminates Pvt. Ltd. v. Collector of Central Excise, Ahmedabad 1995 ECR1 (SC); Union of India v. Delhi Cloth & General Milk Co. LTD. 1997(92) ELT 315 (SC); Cadila Laboratories Pvt. Ltd. v. Commissioner of Central Excise, Vadodara 2003 (152) ELT 262 (SC)." 13. Applying the aforementioned test laid down by the Supreme Court to the facts of this case, we find that the item "Hot Melt Unit" was admittedly used by the assessee while packing their finished goods - "welding electrodes". Since packing is held to be one of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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