CCE, CHANDIGARH Vs. KAKKAR COMPLEX STEELS (P) LTD.

JUDGEMENT

(1.) THIS is a reference application filed by the Department alleging that a question of law as formulated in this application has arisen out of the Final Order dated 16.2.1999 passed by the Tribunal in the captioned appeal. The question of law formulated by the applicants is as follows:

(2.) LD . Consultant vehemently opposes this application. He submits that the final order dated 16.2.1999 of the Bench had placed reliance on the Tribunal's decision in the case of Chaphekar Engg. P. Ltd. v. CCE, Pune (1996 (64) ECR 58 (T)) and that any reference of such question of law as formulated in the present application ought to have been made out of that decision in Chaphekar Engg. P. Ltd. (supra) and not out of the final order in the instant appeal. In support of this submission, Ld. Consultant relies on a decision of this Tribunal and produces a copy thereof. The cited order is in the reference case of Commissioner of C. Ex., Pune v. Kalyani Steels (2000 (122) ELT 254 (T)). In that case, reference of a question was sought to be made out of a final order passed by the regular Bench relying on the decision of a Larger Bench. The Bench dealing with the reference application held that, if at all reference was required to be made, it was only in the case considered by the Larger Bench. The reference Bench rejected the reference application. Ld. Consultant further submits that the issue involved in the instant case is not the same as the issue involved in the case of Moosa Haji Patrawala. He prays for rejecting this application.

(3.) I have carefully examined the rival submissions. In the case of Moosa Haji Patrawala, the question of law which arose out of the final order was whether gate passes issued prior to 1.4.1994 but endorsed after that date would fall within the coverage of Entry No. 10 in the table annexed to Notification No. 16/94 -CE(NT) dated 30.3.1994 so as to become an eligible document for the purpose of availment of Modvat credit under Rule 57A of the Central Excise Rules. I find that the said issue was held to be an arguable one and hence referred to the Mumbai High Court by a regular Bench of this Tribunal as per the reference order cited by ld. JDR. Precisely, the same question of law appears to have been formulated by the Department in the instant case. It further appears that the same question of law would, potentially, arise out of the order of the Bench in the case of Chaphekar Engg. P. Ltd. (supra) which was relied on by the Bench in the final order involved in the present case. I do not find any merit in the submission of ld. Consultant that the question of law arising out of final order dated 16.2.1999 is different from the one which arose out of the order in the case of Moosa Haji Patrawala or the order in the case of Chaphekar Engg. P. Ltd. (supra). The reliance placed by ld. Consultant on the order of the Tribunal in the reference case of CCE v. Kalyani Steels (supra) is also of no avail to the respondents in this application inasmuch as the said order held that any question of law ought to have been made out of the order of the Larger Bench which was relied on by the regular Bench in passing the final order giving rise to the question. This is not the case here. Nobody has a case that the final order dated 16.2.1999 was passed by relying on any decision of any Larger Bench.