ORDER

1. LEAVE GRANTED.

2. WE HAVE HEARD LEARNED COUNSEL FOR THE PARTIES.

3. IN AN APPLICATION UNDER SECTION 35-H(1) OF THE CENTRAL EXCISE ACT, 1944 THE HIGH COURT OF ALLAHABAD, BY ITS ORDER OF 21-11-2003, FRAMED A QUESTION OF LAW AND ASKED THE TRIBUNAL TO REFER THE SAID QUESTION OF LAW FOR THE DECISION OF THE HIGH COURT. THE QUESTION OF LAW FRAMED BY THE HIGH COURT IS AS FOLLOWS:

"WHETHER THIS CEGAT IN ITS ORDER DATED 4-5-2001 HAS RIGHTLY HELD THAT THE ASSESSEE WAS NOT ENTITLED TO MODVAT CREDIT ON THE SECONDARY PACKING FOR THE PACKING OF LAMINATED POUCHES OF PAN MASALA?"

4. THE LEARNED ADDITIONAL SOLICITOR GENERAL SUBMITTED BEFORE US THAT THE QUESTION OF LAW DOES NOT ARISE FOR CONSIDERATION OF THE HIGH COURT IN THE FACTS OF THIS CASE. IN ANY EVENT, HE SUBMITTED, THE OBSERVATIONS MADE BY THE HIGH COURT IN THE IMPUGNED ORDER WHILE CALLING FOR A REFERENCE, ARE NOT JUSTIFIED SINCE THE OBSERVATIONS MADE THEREIN MAY PREJUDICE THE CASE OF THE REVENUE. IN PARTICULAR, HE HAS DRAWN OUR ATTENTION TO THE OBSERVATIONS MADE IN THE PENULTIMATE PARAGRAPH OF THE IMPUGNED ORDER.

5. LEARNED COUNSEL FOR THE RESPONDENT SUBMITTED THAT WHAT IS OBSERVED IN THE ORDER OF THE HIGH COURT, INCLUDING WHAT IS OBSERVED IN THE PENULTIMATE PARAGRAPH, IS THE PRIMA FACIE OPINION OF THE HIGH COURT WHICH FURNISHES THE REASON FOR CALLING FOR A REFERENCE. UNDOUBTEDLY, THE OPINION EXPRESSED THEREIN IS NEITHER FINAL NOR BINDING ON THE COURT WHICH MAY ULTIMATELY DETERMINE THE QUESTION OF LAW, THAT IS REFERRED TO IT.

6. HAVING HEARD LEARNED COUNSEL FOR THE PARTIES, WE ARE SATISFIED THAT A QUESTION OF LAW DOES ARISE FOR CONSIDERATION OF THE HIGH COURT AND WE, THEREFORE, FIND NO INFIRMITY IN THE IMPUGNED ORDER OF THE HIGH COURT CALLING FOR INTERFERENCE. HOWEVER, WE OBSERVE THAT THE OBSERVATIONS MADE BY THE HIGH COURT IN ITS IMPUGNED ORDER, WHICH HAVE A BEARING ON THE MERIT OF THE QUESTION FRAMED FOR CONSIDERATION OF THE HIGH COURT IS ONLY PRIMA FACIE OPINION OF THE HIGH COURT, WHICH IS NEITHER BINDING NOR FINAL, AND IN ANY EVENT, THOSE OBSERVATIONS SHALL NEITHER PREJUDICE THE CASE OF THE PARTIES NOR BE TREATED AS A BINDING PRECEDENT BY THE COURT WHICH ULTIMATELY DETERMINES THE QUESTION OF LAW REFERRED TO IT.

7. WITH THESE OBSERVATIONS, THIS APPEAL IS DISPOSED OF. NO ORDER AS TO COSTS.