Back
2001 Supreme(Raj) 1302
Rajasthan High Court
Honble N.N. MATHUR & JAGAT SINGH, JJ.
Aditya Cement & Ors. - Appellant
Versus
Union of India & Ors. - Respondents
D.B. Central Excise Reference Application No. 55 of 2001
Decided On : December 13, 2001
Rajendra Mehta, for Applicant N.M. Lodha, for Department
Headnote:(a) Central Excise Act, 1944, Sec. 35-H – Requirement of calling the statement of facts – Whether in a case where the facts, as revealed from the orders, are only facts on which the answer of question of law depends and is settled by the highest Court of the country, would it still be advisable to undertake the exercise of calling reference? – Held – Where this Court is satisfied that no useful purpose will be served except to comply with the requirement of the provisions of statue and parties would not be prejudiced, it is desirable to dispense with the statutory requirement of calling the statement of case and to refer the questions of law arising out of the order of the Tribunal. (Para 5)(b) Central Excise Rules, 1944, Rule 57(A) and (J) – Entitlement to modvate credit on duty paid in respect of the input – Held – 57-A(1) does not in anyway specify that the inputs have to be utilized within factory premises – Even in respect of the inputs used in the manufacture of intermediate product which product is then used for the manufacture of a final product, the manufacture would be allowed credit on the duty paid in respect of the input. (Para 7 & 8)
Where this Court is satisfied that no useful purpose will be served except comply with the requirement of the provisions of statute and parties would not be prejudiced, it is desirable to dispense-with the statutory requirement of calling the statement of case and to refer the questions of law arising out from the order of the Tribunal. (Para 5)
The Rule 57-A (1) of the Central Excise Rules, found that the said rule does not in any way specify that the inputs have to be utilised within the factory premises. Dealing with Rule 57-J, the Court expressed that even in respect of the inputs used in the manufacture of intermediate product which product is then used for the manufacture of a final product, the manufacturer would be allowed credit on the duty paid in respect of the input. (Para 7)
(2). At the outset, it is submitted by the learned counsel for the applicant as well as the learned counsel for the department that the question of law, which is sought to be called for reference for the Tribunal has been answered by the Apex Court in M/s. Jaypee Rewa Cement vs. Commissioner of Central Excise (1). Though it is agreed by both the learned counsel for the parties that the question involved has been settled by the Apex Court and, as such, the Reference can be straightway answered but the requirement of law is that this court will have to first call the statement of case from the Tribunal and refer the question of law. Thus, this Court is to wait for the of the Act. Thus, the question arises for consideration is as to whether in a case where the facts, as revealed from the orders, are only facts on which the answer of question of law depends and is settled by the highest court of the Country, would it still be advisable to undertake the exercise of calling the reference? Section 35-H of the Central Excise Act, 1944 reads as follows :
``SECTION 35-H, Application to High Court.-(1) The Commissioner of Central Excise or the other party may, within one hundred and eighty days of the date upon which he is served with notice of an order under Section 35-C passed on or after the 1st day of July, 1999 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of exercise or to the value of goods for purposes of assessment), by application in the prescribed form, accompanied, where the application is made by the other party, by a fee of two hundred rupees, apply to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal.
(2) The Commissioner of Central Excise or the other party applying to the High Court under sub-section (1) shall clearly state the question of law which he seeks to be referred to the High Court and shall also specify the paragraph in the order of the Appellate Tribunal relevant to the question sought to be referred.
(3) On receipt of notice that an application has been made under sub-section (1), the person against whom such an application has been made, may, notwithstanding that he may not have filed such application, file, within forty-five days of the receipt of the notice, a memorandum of cross-objections verified in the prescribed manner against any party of the order in relation to which an application for reference has been made and such memorandum shall be disposed of by the High Court as if it were an application presented within the time specified in sub- section (1).
(4) If, on an application made under sub-section(1), the High Court directs the Appellate Tribunal to refer the question of law raised in the application, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such direction, draw up a statement of the case and refer it to the High Court.
(3). Dealing with the identical provisions under Section 24(2)(b) of the Orissa Sales Tax Act, 1947 in State of Orissa vs. Mahabir Prasad Agrawalla (2), the Orissa High Court held that no purpose would be served by calling the statement of case and held that in such a circumstances, it would be a futile exercise to call-for the reference. The Court observed thus-
``Where the facts as revealed from the orders are the only facts on which answer to question of law depends, it would be a futile exercise to comply with requirement of Statute only without any purpose.
(4). The Delhi High Court in C.I.T. vs. Maharishi Ved Vigyan Vishwa Vidya
