CCE, NEW DELHI Vs. BLOPAK

JUDGEMENT

(1.) This is a reference application filed by the Commissioner, Central Excise, New Delhi for referring the following questions of law to the Hon'ble High Court purporting to be arising out of Tribunal's Final Order No. 786/98 -C dated 24.8.98: -

(2.) Shri S.P. Rao, learned D.R. submitted that the Respondents M/s. Blopak instead of availing exemption from payment of duty upto the aggregate value of first clearance not exceeding Rs. 30 lakhs under Notification No. 1/93 -CE paid central excise duty and availed of Modvat credit; that the Tribunal upheld the contention of the Respondents under the Final Order No. 796/98 -C relying upon the decision in the case of CCE vs. Steel Authority of India Ltd., 1990 (47) ELT 385 (T); that in the case of Mahesh Metal Industries and in respect of M/s. Modern Engg. Works vide Order No. R -20/97 -NB dated 7.4.97 and Order No. R -6/97 -NB dated 21.2.97 respectively the Tribunal has referred similar question of law to the Hon'ble High Court; that accordingly the present reference may also be allowed.

(3.) Shri K.K. Anand, learned Advocate opposed the prayer by submitting that the issue involved in the Appeal was whether it was mandatary for the Respondents to avail of benefit of Notification No. 1/93 dated 28.2.93. There was no question relating to applicability of Rule 57 -C of the Central Excise Rules as was the case in Mahesh Metal Industries and Moder Engg. Works; that the issue involved in the said appeal before the Tribunal was purely a question of availability of exemption notification which cannot be referred to the Hon'ble High Court as per the provisions of Section 35G of the Central Excise Act. He, further, submitted that the second requirement of Section 35G is that the question should arise out of the Order; that the question as framed by the Commissioner does not arise out of the Order at all. Finally, he submitted that in Mahesh Metals Inds. case the learned Advocate who appeared on behalf of the Respondents had no objection, if the case was referred to the High Court, and accordingly, the question whether the issue relating to rate of duty can be referred was not raised before the Appellate Tribunal.