Dismissed

Commi. Custams and Cen. Excise Raipur v. M/S Vindhya Telelin.Ltd.Udyog Vihar

Chhattisgarh HC5 Jul 2012CER/5/2001

Case brief

AI extract

What is this about?

In this Section 35H(1) application, the Commissioner of Central Excise sought to refer the Tribunal's decision on MODVAT credit to the High Court. The High Court held that the Tribunal's finding was purely factual and dismissed the reference application as devoid of merit.

What did the court decide?

The reference application filed by the Revenue was dismissed, with no costs awarded to either party.

Commi. Custams and Cen. Excise Raipur Vs M/S Vindhya… — Income Tax | Chhattisgarh HC (2012)

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HIGH COURT OF CHHATTISGARH^ATBILASPUR

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DB: HON’BLE MR. ABHAY MANOHAR SAPRE 85 HON’BLE MR. G. MINHAJUDDIIL JJ.

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C.E.R. No.05/2001

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Applicant Coissioner,mm Customs 85 Central Excise, Raipur. Versus Respondent M/ s. Vindhya Telelinks^Ltd. \ Application under Section 35 H (^{1)ofthe!CentralExciseAct,} 1 944. Present : Smt. Smiti Sharma, counsel^f or the appellant.

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OR DER

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(Passed^on6thJuly, 2012)

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The following order of the Cortu was passed by Abhay Manohar Saprg, J.

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Heard.

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This is an application filed by the Commissioner of Central Excise (Revenue) under Sectnip 3 5 H (1) of the Central Excise Act, against the order dated 10.02.2000 passed^{bytheCustoms,} Exisec 8t Gold (Corol)nt Appellate “The Tribunal, (for short hereinafter calle d} Tribunal”) in F Appeal No. E/ 1422/99—NB(S). 3. By this application, the applicant i.e. Revenue seeks i for calling a reference to this Court^fro nii the Tribunal on the question of law proposed by the aplicant and which p according to the applicant is a referable question of law I arising out of the case. x i i i 4. So the short question that^arise s for consideration in this reference application is whether any referable question of law arises or not so as to call the Tribunal to refer the same to this Court in its reference jurisiction?d

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On perusal of the order of the Tribunal would g0 to Show that the issue invlvedo in the appeal before the Tribunal or rather which traveldle up to the Tribunal was Wetherh the assessee who is engedag in business of manufacture of telecommunication cables and who claimed to have used certain items, namely auto load sharing panel, complete spares, control panel for conicol pay off, solid state relay, D.C. m o tr with techno RDC. , banana flug and pole male connector, spare parts for testing equipments, spares (D.C. gear^{motor,D.C.Boardflab,siga} nl convertor, techno generator),^{DiscfilterforGTS,mufflefrnace,} u^BESamborite insert, encoder, temperature sensor ‘ and automatic foil guiding^{unitinitsmanufacturingactities} iv^{claimedmodvat} benefit on these items. The assessee was served with a show cause notice for recovery of the arnount of the modvat credit claimed by them for having illegally claied,m as the goods did not fall within the definition of^“capita l goods/inputs”. The assessee ctestedon the correctness of the noteic by alleging that they had rightly taken the modvat credit. Burthe Deputy Commissioner did not agree with their contention completely and through the order in original all d‘ated 16.8.96 allowed the modvat credit on all goods except lmuffle furnace, auto ‘complete load sharing panel, Amborite Insert, spares for testing equipments and banana plug 14 pole make connector and ordered recovery of credit amoun in respect of other goods^{andalsoimposed} penalty^{ofRs.?0,000/—underRule} l73-Q of the Rules, on them,

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The Tribunal then examined the case in an appeal filed by the Commissioner (Revenue) and While upholding the order of Commissioner (Appeal) dismissed the appeal filed by the Revenue. l

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This is what as held by the Triburi‘al in para 6~of their order:—

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“6. The main ground on which the Revenue has assailed the impugned order of the Commissioner (appeals) is that the disputed goods on which modvat credit had been allowed did not fall within the definition of^“capital goods”^{uinderRule57—Q}

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of the Rules and that the Commissioner (Appeals) has wrongly aff1rmed the order of the Deputy Commissioner in respect of the same. But in my View, this ground is not liable to be accepted. The respondents are engaged in the manufacture of tele—communication cables and all the disputed goods^are parts^{ofthemachines/apparatusbeing} used by them for the production of those cables. The use of each and every item has been described in detail by the Deputy commissioner in the order in orig'nal and the Commissioner (Appeals)^{hasrightlyendorsedhisreasoningsin} the impugned order. The order of the Commissioner (Appeals) is quite reasoned one and keeping in view the nature of the final product^andthe goodsⁱⁿ question,^hehasrightly accepted the View of the Deputy Commissioner that the goods fall within the d‘efmition of^‘capital goods’ being part and parcel of the various machines installed by the respondents, in their factory for manufacture of their final product. Without these goods their machines will not be able to work and produce the‘fmal product. All these goods have direct nexus and participation in the final product of the respondents. Therefore, there exists no reason to cogent disturb the concurrent findings of the authorities below that the disputed goods fall within the dehnition of^“capital goods”^{andmodvatcreditis} admissible on the same to the respondents.

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In our opinion, a finding of Tribunal on such issues do i not involve any question of law much less referable one to i this Court to re—exarnine as questioni of law. In fact, it is a 1 pure question^{offactanddoesnotinvolveanyissuesrelating} l to law or its interpretation calling i1nvocation of reference jurisdiction^{ofthisCourttoanswer.}

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In the light of foregoing discussion, the application made by the Revenue (Commissioner^ofCentral Excise) is found to be devoid of any merit as it does not involve any question^{oflawmuchlessreferableoneasisrequiredtobe} made out under section 35 (^H )^{ibidandhence,itdeserves} dismissal.

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It is accordingly dismissed.

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1 1. No cost.

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Sd/—
Abhay Manohar SaPre
\ ‘ Judge

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SW-
G-Minhajuddin
a
Judge

Commi. Custams and Cen. Excise Raipur v. M/S Vindhya Telelin.Ltd.Udyog Vihar

Case brief

What is this about?

What did the court decide?

Commi. Custams and Cen. Excise Raipur v. M/S Vindhya Telelin.Ltd.Udyog Vihar

Case brief

What is this about?

What did the court decide?

What the court decided

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