ORDER
S.L. Peeran, Member (J)
1. The Hon’ble High Court of Judicature at Madras has directed the Tribunal to draw a statement of the case and refer the following question and to remit the relevant materials for the purpose of deciding the question:-
“Whether the assessee is entitled to claim Modvat credits on inputs received under the cover of gate passes endorsed after 14-94, despite the terms of the Notification No. 16/94, dated 30-3-1994?”
2. The facts of the case are that assessees are engaged in the manufacture of C.N.C. Lathes, machine tools and parts thereof falling under Chapter 84 of the Central Excise Tariff Act, 1965 and they are holding Central Excise Registration Certificate No. 18/93. The Unit is availing the facility of Modvat provided under Rule 57A of Central Excise Rules, 1944. The department on scrutiny of the accounts of the firm noticed that they had taken Modvat credit on the basis of gate passes endorsed after 1-4-94. Therefore, in terms of Notification No. 16/94-C.E. (N.T.), dated 30-3-94 issued by Central Government in exercise of powers conferred under Rule 57G(2) specifies endorsed gate passes as documents on the basis of which Modvat credit can be taken provided the same has been issued before 1-4-94; it was the opinion of the department that the endorsed GP-Is issued after 1-4-94 were not eligible for credit in terms of the said Notification. Hence, a show cause notice dated 1040-94 was issued by Range Officer calling upon the assessee to show cause as to why the credit of duty of Rs. 1,08,507.18 should not be disallowed.
3. After due consideration, the Assistant Commissioner rejected their prayer and held that in terms of the said Notification issued by the Government, endorsed gate passes cannot be accepted as valid documents. The matter was agitated before the Commissioner (Appeals) and the Commissioner (Appeals) in his order Nos. 599 & 600/96 (CBE) dated 29-8-96 upheld that the endorsed gate passes can be considered as eligible documents in view of the fact that duty paying character of the goods is not in doubt.
5. The Revenue was aggrieved with the said order and filed appeal before the Tribunal. The Tribunal after due consideration followed the ratio of the following judgments : (i) Musa Haji Patraivala v. CCE – 1996 (83) E.L.T. 620, (ii) CCE v. Shine Wires Pvt. Ltd. – 1998 (101) E.L.T. 425 and held that the issue being covered, there was no merit in the Revenue appeal and rejected the same by Final Order Nos. 1757 & 1758/98, dated 3-9-98. The Revenue filed a Reference application seeking reference of the question framed by them to Hon’ble High Court in terms of Section 35F(1) of Central Excise Act. However, the Tribunal declined to refer the question as similar questions had not been referred by the Tribunal in the case of CCE v. KSEDC Ltd. in Reference Order Nos. 124 & 125/97, dated 9-5-97. Aggrieved by the said rejection, the Revenue filed application before the Hon’ble High Court seeking for re-dressal of their grievance. Hon’ble High Court has been pleased to direct the Tribunal to draw up a statement of facts and remit the relevant records in their Reference case Petition No. 5/01, dated 30-1-2001. Therefore, the Registry is directed to submit the statement of facts in quadruplicate along with paper books submitted by the Revenue to the Registrar of Hon’ble High Court to place it before the appropriate bench for further orders and for answering the question framed by the Hon’ble High Court.