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TMI Blog2005 (10) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... were neither used in the manufacture of final product nor used for carrying out any process and bringing about change in the final product, will fall under the purview of Rule 57Q of Central Excise Rules, 1944 for extending the capital goods credit?" The Facts : 2.The question sought to be referred in both these applications is one and the same. A common judgment can dispose of both these applications. However, for the sake of convenience the facts are drawn from Central Excise App1ication No. 5/1998. 3.The respondent-assessee availed credit on capital goods under rule 57Q of the Central Excise Rules, 1944 ("Rules" for short). Three show cause notices dated 6th April, 1995; 25th May, 1995 and 3rd November, 1995 respectively were issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T. 620 (Tri.)] in the case of M/s. Kalyani Steels Ltd. 3. Commissioner v. Uttam Engineering, 1996 (86) E.L.T. 498 (T). 4. Jeep Industry v. Commissioner, 1996 (88) E.L.T. 733. 6.Being aggrieved by the aforesaid order of the Tribunal, reference application came to be filed at the instance of the Revenue contending that the Tribunal be directed to refer the question of law raised by them for opinion of this Court. 7.The aforesaid application came to be rejected by the Tribunal vide its order dated 13th February, 1998. Consequently, Revenue has preferred the present application under section 35G(3) of the Central Excise Act, 1944 ("Act" for short) to seek directions against the Tribunal so as to get the aforesaid questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on would satisfy the test of capital goods. He has also placed reliance on the aforesaid judgment of the Apex Court in the case of Jawahar Mills Ltd. in support of his submission. 12.Mr. Shroff further submits that so far as "material handling equipment" is concerned, there is a judgment of the Apex Court in the case of M/s. Birla Corporation Ltd. v. Commissioner of Central Excise, 2005 (186) E.L.T. 266 (S.C.); directly dealing with the said item, viz., material handling equipment, and treating it as capital goods. According to him, the Apex Court having ruled that the material handling equipment would qualify the test of capital goods as such the very same item involved in the subject question would be entitled to Modvat credit. 13.Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her decisions referred by the Tribunal in the impugned order were cases involving sales tax and income tax and, therefore, the Tribunal should not have relied on those decisions is without any substance because the real question is that of the principle laid down by a decision. In view of the liberal language of the provision; Mr. Rohtagi fairly and very rightly did; not seriously dispute that if any of the items enumerated in explanation 1(a) is used for any purpose mentioned therein for final products, it would satisfy the test of 'Capital goods'. The main contention of Mr. Rohtagi, however, is that the question whether an item falls within the definition of 'Capital goods' would depend upon the user it is put to. The submission is that p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g remand of these matters for fresh decision by the Tribunal does not arise. On the facts and circumstance of these cases, therefore, the stand that the item in question are not used for manufacture of final product cannot be accepted for (Emphasis supplied)the reasons afforested. 17.The aforesaid paragraph, unequivocally, goes to show that the user test is the only test required to be satisfied to find out whether particular goods could be said to be capital goods. 18.Now let us consider the user to which the aforesaid two items i.e. tubes and pipes are put to. Considering their user, found by the authorities below as described in paras 12 and 13 (supra), it is not possible to say that they were not used in manufacture of the final pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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