ORDER
S.S. Kang
1. Revenue filed this Reference Application referring the following question of law to the Hon’ble High Court :
“Whether the items Panel Board and PVC Cables which do not participate in the manufacturing process can be said to fall within the definition of Capital goods under Rule 57Q of the Central Excise Rules, 1944, at the relevant time and accordingly availed as provided under the said Rule.”
2. Ld D.R., appearing on behalf of the revenue, submit that Panel Board and PVC Cables are not participating in the manufacturing process and are, therefore, not covered under the definition of the capital goods.
3. Ld. Counsel, appearing on behalf of the respondents, submits that in the Order-in-appeal the Commissioner (Appeals) gave a specific finding in respect of Panel Board and PVC Cables that these are used in the factory for supplying electricity to the various machines and also to control the electricity supply through Panel Board. The use of these items is a fact on record and also not disputed by the revenue authorities. He submits that this finding of fact that these are used with the machines, is not disputed by the revenue even in the appeal before the Tribunal. He, therefore, submits that this question of law not framed by the revenue is contrary to the facts of the case. He, therefore, submits that the application be dismissed.
4. Heard both sides.
5. The contention of the revenue is that PVC Cables and Panel Boards do not participate in the manufacture of final product whereas in the Order-in-Appeal, there is a specific finding that these items are used with the machines for supply of electricity. This finding of fact was not challenged by the revenue even in appeal. Therefore, now revenue wants to raise a question of law based on new facts, which is not permissible. Therefore, the reference application is rejected. (Pronounced in Court).