Commissioner of Central Excise vs Tibrevala Electronics Ltd.

G. Chandraiah, J.—This Central Excise Reference Case has been filed u/s 35(H)(1) of the Central Excise Act, 1944 seeking reference of the following questions said to be arising from the orders dated 21-05-2002 in Appeal No. E/112/2002 on the file of CEGAT, Bangalore.

Is final order of CEGAT legally correct in holding that "Rule 57S(2)(b) applies when the capital goods are removed after being used in the factory and in the instant case there is no such removal", in view of the fact that a ''factory'' defined u/s 2(e) of the C.E. Act, 1944 ceases to be a factory'' when it stops manufacturing excisable goods?

Are capital goods not deemed to have been removed from the ''factory'' when the factory stops production and thus ceases to be a factory?

The narrow controversy involved in the case as can be gathered from the orders of the Tribunal as well as the Appellate Authority is with respect to the alleged removal of capital goods after availing modvat credit on procurement of the same. 1st appellate authority, as a matter of fact found that there was no removal of the capital goods and further it has recorded a finding that the appellant-unit was doing job work though it had stopped manufacture of products by itself. 1st appellate authority has held that invocation of Rule 57(2)(b) of Central Excise Rules, 1944, is not applicable inasmuch as there is no removal of goods from the factory. This finding was not challenged by the department before the Tribunal.

In that view of the matter, questions now sought to be raised as to whether under Rule 57(2)(b) of Central Excise Rules, 1944 applies when capital goods are removed after being used in the factory; and whether ''premises'' could be called as ''factory'' when it stops manufacturing excisable, are not the questions which fell for consideration before the Tribunal.

Now it is well settled that the question of law said to be arising from the orders of the Tribunal mean the questions which have been raised and argued before the Tribunal and not one which may be raised based on the material though not raised and argued before the Tribunal. Instances of what are the questions of law that are said to be arising from the orders of the Tribunal are lucidly elucidated in the judgment of the Supreme Court in the case of Scindia Steam Navigation Co. Ltd. v. Commissioner of Income Tax (AIR 1961 SC 1633). Applying the parameters as set out in the above judgment of the Supreme Court, we do not find any question of law, much less substantial question of law in the present case. Accordingly, we decline to call for reference and dismiss the Central Excise Reference Case. Miscellaneous petitions, if any, pending in this reference case shall also stand dismissed. There shall be no order as to costs.