Cce Vs. Laxmi Tar Udyog - Court Judgment

Excerpt:

.....appearing for the respondents has no objection.4. we have heard the rival submissions. we have perused the referred order of the tribunal. we have also perused the final order of the tribunal in the case of commissioner of central excise v. mis. mahesh metal industries. we find that in the facts of the two cases are similar. we note that since the tribunal has already come to conclusion that a point of law arises, we do not see any reason to disagree with that conclusion of the tribunal. in that view of the matter, we hold that the following questions of law arise which should be referred to the hon'ble delhi high court for its considered opinion: (1) whether the option either to pay duty and avail modvat credit or avail exemption as a ssi unit eligible for exemption up to a particular limit of clearances is vested in the unit. (2) whether rule 57c of the central excise rules, 1944 is attracted to clearances taken on payment of duty even when duty exemption was available to the unit as a ssi unit on the clearances up to that value.

Judgment:

1. Revenue has filed the captioned Reference Application stating that a point of law arises out of the Tribunal's Final Order No.A/309/98-NB(DB) dated 5.5.1998. The point of law has been formulated as: (1) Whether the option either to pay duty and avail modvat credit or avail exemption as an SSI Unit is vested in the Unit.

(2) Whether provisions of Rule 57C are attracted in cases where final products are cleared without availing of exemption from whole of the duty of Excise.

(3) Whether the final order No. A/309/98-NB(DB) dated 5.5.1998 is legally correct and proper or not in the light of the above question of law.

2. Arguing the application for making reference to the Hon'ble High Court, Shri R.D. Negi, Id. DR submits that similar issue came up before the Tribunal in the case of Commissioner of Central Excise, New Delhi v. Mahesh Metal Industries for making reference to the Hon'ble High Court. He submits that the Tribunal held that a point of law arises out of the Order of the Tribunal. He submits that since the Tribunal had already concluded that a point of law arises and since the same issue is involved in the present case also, the reference application may be allowed.

3. Shri V.K. Gupta, Id. Counsel appearing for the respondents has no objection.

4. We have heard the rival submissions. We have perused the referred order of the Tribunal. We have also perused the Final Order of the Tribunal in the case of Commissioner of Central Excise v. Mis. Mahesh Metal Industries. We find that in the facts of the two cases are similar. We note that since the Tribunal has already come to conclusion that a point of law arises, we do not see any reason to disagree with that conclusion of the Tribunal. In that view of the matter, we hold that the following questions of law arise which should be referred to the Hon'ble Delhi High Court for its considered opinion: (1) Whether the option either to pay duty and avail modvat credit or avail exemption as a SSI Unit eligible for exemption up to a particular limit of clearances is vested in the Unit.

(2) Whether Rule 57C of the Central Excise Rules, 1944 is attracted to clearances taken on payment of duty even when duty exemption was available to the Unit as a SSI unit on the clearances up to that value.