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2004 (10) TMI 103

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..... e Rules, 1944, but only part of the Kiln. (ii) Whether the Tribunal has overlooked the fact that 'Refractory bricks and Silicon Tiles' had been subsequently defined as Capital goods under Rule 57Q of Central Excise Rules, 1944 with effect from 16-3-95, which clearly establishes the fact that they were not inputs as defined under Rules 57A of Central Excise Rules, 1944. Therefore, the impugned items were not eligible for Modvat Credit during the material period. Applicant's contention : 2.Learned Counsel for the applicant points out that these are questions of law in respect of which there was no decision by the High Court though there are decisions of the Larger Bench of the Tribunal. Therefore, it raises substantial questions of law to be stated before the High Court. Respondent's contention : 3.Mr. J.P. Khaitan, learned Counsel for the respondent, on the other hand, takes a preliminary objection relying on the decision in Commissioner of Income-Tax, Bombay v. Scindia Steam Navigation Co. Ltd. - (1961) 42 ITR 589 on two propositions. First, that these points were never raised before the learned Tribunal nor the learned Tribunal had dealt with the same and that one of the .....

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..... in Scindia Steam Navigation (supra). The form of the question involved : 6.But following the said ratio, it appears that the point involved is different in form, which we propose to formulate as hereinafter viz. : "Whether the Refractory bricks and Silicon Carbider Tiles used, in the process arising or in relation to the manufacture of the insulated final article, in the Trolleys not being parts of the Trolleys but parts of the process could be excluded within the exclusion clause of the Modvat under the Modvat Scheme from the Modvat benefit. On account of its not being inputs but being parts of equipment or apparatus, in the facts and circumstances of the case?" 6.1So far as the second question with regard to the capitalization is concerned, it appears that this point was also not mentioned in the application for reference. From the order of the Tribunal it also does not appear that this was so raised. If it was raised on the basis of the subsequent amendment which has not been given retrospective effect and was effective from 1995, then the same cannot be applied until it is held to be retrospective in operation in respect of the period prior to 1995. This question, there .....

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..... ame the question. But if it is not argued or raised at all in the form it is now sought to be raised, in that event, framing of a question in different form is impermissible under Section 35G of the Central Excise and Salt Act, 1944. He points out that it is already found by the learned Tribunal that the Department had never attempted to treat the same as inputs and as such this was not a question, which can be argued in view of the subsequent amendments and as such this cannot be treated to be an obscurity but a question which was never raised. As such this cannot be allowed. The answer : 9.2. The question has to be answered in the context of Section 35G of the Central excise and Salt Act, 1944 as it stood at the relevant point of time which runs as follows : "Section 35G. Statement of case to High Court. - (1) The Commissioner of Central Excise or the other party may, within sixty days of the date upon which he is served with notice of an order under Section 35G (not being an order relating, amount other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), by application in the pre .....

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..... 2004 and Lalit Mohan Thapar v CWT (Central), Calcutta - (GA No. 835 of 2002) AWT No. 3730 of 1998, disposed of by us on 23rd July 2004 wherein we had occasion to discuss the law referring to various decisions operating in the field. 9.4The leading decision relied upon by Mr. Khaitan in Scindia Steam Navigation (supra) had crystallized the principles. Having regard to the question raised by Mr. Khaitan and which now we are called upon to decide, we would confine ourselves only to the extent of the High Court's power to frame a question in a form different from what was urged before the learned Tribunal and reference was sought for under Section 35G(1) and the question formulated in an application for reference in a High Court when the learned Tribunal refused to refer under Section 35G(1). Admittedly, if there is any obscurity, in that event, High Court is empowered to remove such obscurity and reframe the question. High Court is also equally empowered to reframe the question, which is otherwise involved in accordance with the guidelines laid down in Scindia Steam Navigation (supra) provided such question was involved in the case out of which reference is sought for and it was so .....

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..... he reference, that would in effect give the applicant a right which is denied to him under section 66 (1 and 2), and enlarge the jurisdiction of the court so as to assimilate it to that of an ordinary civil court of appeal. It is again to be noted that, whereas Section 66(1), as it stood prior to the amendment of 1939, conferred on the Commissioner a power to refer a question of law to the court suo motu, that power has been taken away under the present section and it has accordingly been held that under Section 66(1), as it now stands, there is no power in the Tribunal to refer a question of law suo motu for the decision of the court. If, as contended for by the respondents, the court is to be held to have power to entertain in a reference, any question of law which arises on the facts found by the Tribunal, its jurisdiction under Section 66(5) must be held to be wider than under Section 66(1) and (2). The correct view to take, in our opinion, is that the right of the litigant to ask for a reference, the power of the Tribunal to make one and the jurisdiction of the court to decide it are all co-extensive and, therefore, a question of law which the applicant cannot require the Tr .....

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..... rt cannot deviate from the point so formulated and frame the same in a form different from what was sought to be raised for reference. Whether the scope of Section 35G(3) wider than Section 35G(1) : 10.The proposition that the provisions of sub-section (3) are wider than those in sub-section (1) does not seem to be a sound proposition. Inasmuch as the refusal of the learned Tribunal under sub-section (1) does not confer any additional right on the party seeking the reference. Under sub-section (3) the party seeks to enforce a direction by the High Court to refer the question by the learned Tribunal, which it had refused to do. Therefore, it cannot ask for direction upon the learned Tribunal to refer a question different from that the reference of which was refused by the learned Tribunal since raised by the party in Form EA-6. The High Court under sub-section (3) directs the learned Tribunal to refer the question, which it had refused to refer. Since the High Court is not exercising any original or appellate jurisdiction, it has no power to formulate any other question other than which is permissible within the scope of the limited jurisdiction conferred upon it under Section 3 .....

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