1 Court No. - 37 Case :- CENTRAL EXCISE REFERENCE No. - 110 of 2000 Petitioner :- Cce Meerut Respondent :- M/S Willway F. India Ltd. Petitioner Counsel :- S.C. Hon'ble Rajes Kumar,J.
Hon’ble Subhash Chandra Nigam,J.
Heard Shri learned S.P. Kesharwani, learned counsel for the
department.
The Tribunal has referred the following question for consideration:
“Whether gatepasses issued prior to 1.4.94 but endorsed
after that date would fall under the coverate of Entry No.
10 in the table to the Notification No. 16/94-CE(NT) dated
30.3.94 and would consequently become eligible
documents for taking credit under Modvat Scheme?”
Shri S.P. Kesharwani, learned counsel for the department very fairly
submitted that the question involved in the present reference has been
answered by this Court in favour of the assessee and against the department
in C.E.R. No. 79 of 1999, C.C.E., Meerut Vs. M/s Elegant Electrical Ltd.
Similar question also came up for consideration before the Bombay High
Court in the case of Commissioner of C. Ex., Mumbai-1 Versus Moosa Haji
Patrawala P. Ltd, 2009 (243) E.L.T. 35 (Bom.). The Bombay High has held
as follows:
“2. It may be noted that in Commissioner of Central Excise,
Ahmedabad-I v. Gujarat Medicraft Pvt. Ltd., reference was
made at the behest of the Commissioner of Central Excise,
Ahmedabad-I before the Gujarat High Court and Gujarat
High Court after considering the language of the said
Notification and the scheme, came to conclusion that it was
open to the assessee to get the benefit of the gate-passes, which
were issued prior to 1-4-1994 but before 30-6-1994. Similar
reference as made before this Court, was made before the
Gujarat High Court and Gujarat High Court has answered the
reference against the Revenue. The learned counsel for the
respondents points out that authority of Gujarat High Court
has been followed by Punjab & Haryana High Court in CCE,
Commissionerate-I, Chandigarh v. Suraj Udyog – 2002 (144)
E.L.T. 293 (P & H) as well as by Himachal Pradesh High
2Court in Commissioner of Central Excise v. Saras Poly Pack –
2008 (232) E.L.T. 418 (H.P.). The learned counsel also
pointed out that the Central Board of Excise & Customs has
issued Circular No. 600/37/2001-CX, dated 19th November,
2001 wherein it is specifically stated that judgment of Gujarat
High Court in the reference of M/s Krishna Chemicals,
Ahmedabad passed on 22.11.2000 wherein it was held that
gate passes issued prior to 1-4-1994 but endorsed thereafter
would be valid documents for availment of credit, subject to
credit being taken on or before 30th June, 1994 has been
accepted by the Board and instructions were issued that all the
pending cases be decided by following the ratio of judgment. It
appears that reference in Krishna Chemicals was decided by
the Gujarat High Court along with the reference in case of
Gujarat Medicraft Pvt. Ltd. In view of the above authorities
and the circular issued by the Central Board of Excise and
Customs, Revenue cannot take a different view.”
We have perused the order dated 09.07.2009 passed by this Court in
C.E.R. No. 79 of 1999, C.C.E., Meerut V/s M/s Elegant Electrical Ltd. and
the order dated 10.6.2009 passed by the Bombay High Court in the case of
Commissioner of C. Ex., Mumbai-1 Versus Moosa Haji Patrawala P. Ltd,
2009 (243) E.L.T. 35 (Bom.). The question involved in the present reference
is squarely covered by the aforesaid two decisions. Respectively following
the two aforesaid decisions, this Court answer the question referred in
affirmative i.e. in favour of the assessee and against the department. The
reference is accordingly answered.
Date: 12.1.2010
MK/