ORDER
G.R. Sharma, Member (T)
1. By the captioned reference application, the applicant has submitted that the following points of law arise out of the Tribunal’s Final Order No. A/2261/96-NB, dated 18-9-1996 :
“1. Whether the Hon’ble Tribunal is correct in concluding that option is available to the assessee either to avail exemption or to pay duty on final product and avail Modvat credit under Rule 57A.
2. Whether the Hon’ble Tribunal is correct in altering the expression in Rule 57C and whether the embargo laid down by this rule is absolute and categorical.
3. Whether the impugned Order No. A/2261/96-NB and Stay Order No. S/439/96-NB, dated 18-9-1996 is legally correct and proper in terms of AP High Court’s order in case of Ganesh Metal Processing Ind. v. G.O.I.”
2. Briefly stated the facts of the case are that respondents herein submitted an appeal before the Tribunal] on the ground that the option to avail the exemption granted was with the respondents herein and as the respondents herein had chosen to pay duty on its final product, they cannot be compelled to clear the same at nil rate of duty. The Tribunal observed that the issue here is about the admissibility of Modvat credit when there is an exemption notification for the goods in question. The Assistant Commissioner took the view that the assessee has to necessarily avail of the full duty exemption up to Rs. 30 lac value of clearance in a financial year. As they were entitled to SSI exemption under Notification No. 1/93-C.E. the Tribunal observed that the same issue arising out of the same impugned order has been dealt with and disposed of by the Tribunal in the case of Garg Industries v. C.C.E. reported in 1996 (86) E.L.T. 495 (Tribunal); that it is entirely the option of the assessee either to avail exemption or to pay duty at normal rate and avail Modvat if admissible and that there was nothing wrong if the assessee opted to pay duty on the final product and to take Modvat credit. Against this decision of the Tribunal, the ld. Commissioner, Central Excise has filed the present reference application.
3. Shri Jangir Singh, ld. DR appearing for the applicant Commissioner submitted that the Tribunal in the case of C.C.E. v. Modern Engg. Works held that a question of law is involved on which there is no pronouncement by any High Court and that a reference arises in the instant case. He submits that since the Tribunal has admitted that a point of law is involved, the present case may also be referred to the High Court.
4. Ms. Ginny Bedi, ld. Advocate submits that she has no objection if the case is referred to the High Court.
5. Heard the submissions of both sides. I agree that in the instant case, two points of law are involved. The points of law can be formulated as under :
(i) Whether the option either to pay duty and avail Modvat credit or avail exemption as an SSI unit eligible for exemption up to a particular limit of clearance is vested in the unit;
(ii) Whether Rule 57C of the Central Excise Rules, 1944 is attracted to clearances taken on payment of duty even when duty exemption was available to the unit as SSI unit on the clearances up to that value.
The above draft statement of reference may be circulated to both the sides and placed before the Bench for finalisation on 22nd April, 1997.