COMMISSIONER OF CENTRAL EXCISE Vs. R H INDUSTRIES

JUDGEMENT

(1.) Whether Respondent No. 1 is entitled to the benefit of deemed Modvat credit in terms of Notification No. 208/83-C.E., dated 1-8-1983 issued by the department is the question which arises for determination in this petition filed under Section 35H(1) of the Central Excise Act, 1944 (for short, 'the Act').

(2.) Respondent No. 1 M/s. R.H. Industries, Mohali is engaged in the manufacture of parts and accessories of motor vehicles falling under Chapter Heading 87.08 of the Central Excise Tariff Act, 1985. It took credit on inputs i.e. . Angles and M.S. Flats during the period from April, 1987 the July, 1987 under Government of India Ministry of Finance Order F. No. B22/5/87-TRU, dated 7-4-1986. The Assistant Commissioner issued notice to Respondent No. 1 proposing to recover the Modvat credit availed by it. After considering its reply, the adjudicating authority confirmed the proposal vide its order dated 6-9-1988. The Collector (Appeals) accepted the appeal filed by Respondent No. 1 and quashed order dated 6-9-1988. Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi (for short, 'the Tribunal') upheld the order of the Collector (Appeals) and dismissed the appeal filed by the department. The Tribunal relied on the order passed by a Larger Bench in the case of Machine Builders v. Collector of Central Excise, Bolpur and held that the benefit of deemed credit is admissible to Respondent No. 1.

(3.) Shri M.S. Guglani, Counsel for the petitioner relied on the judgment of a Division Bench of -this Court in Upper India Steel Manufacturing and Engineering Co. Ltd. v. Union of India and argued that the orders passed by the Collector (Appeals) and the Tribunal may be declared illegal and the latter may be directed to refer the following question of law for the opinion of this Court: