D.K. Seth, J. - (1.) The questions raised : In this application under Section 35G(3) of the Central Excises and Salt Act, 1944 before it was amended in 1999, two points have been raised namely : (i) Whether the Tribunal was justified in allowing the credit of Modvat of Refractory bricks and Silicon Carbide Tiles under Rule 57A of the Central Excise Rules 1944 relying on the affidavit filed by the assessee describing the manufacturing process of Electrical insulator and the usage of the impugned items therein. The Tribunal has not considered the very fact that even by the assessee's own account the impugned items were used to cover the Kiln Trolleys which are inserted into the Kiln for the purpose of firing of the insulator in the Kiln. They are, therefore, very much parts of the Trolleys, which are in turn, parts of the Kiln itself. In other words, the impugned items are not inputs as defined under Rule 57A of Central Excise Rules, 1944, but only part of the Kiln. (ii) Whether the Tribunal has overlooked the fact that 'Refractory bricks and Silicon Tiles' had been subsequently defined as Capital goods under Rule 57Q of Central Excise Rules, 1944 with effect from 16-3-95, which clearly establishes the fact that they were not inputs as defined under Rules 57A of Central Excise Rules, 1944. Therefore, the impugned items were not eligible for Modvat Credit during the material period.
(2.) Learned Counsel for the applicant points out that these are questions of law in respect of which there was no decision by the High Court though there are decisions of the Larger Bench of the Tribunal. Therefore, it raises substantial questions of law to be stated before the High Court.
(3.) Mr. J.P. Khaitan, learned Counsel for the respondent, on the other hand, takes a preliminary objection relying on the decision in Commissioner of Income-Tax, Bombay v. Scindia Steam Navigation Co. Ltd. - (1961) 42 ITR 589 on two propositions. First, that these points were never raised before the learned Tribunal nor the learned Tribunal had dealt with the same and that one of the points is based on the subsequent amendment. Second, he points out from the questions sought to be referred to that it was never asserted by the appellant that these were not inputs but were treated to be part of the apparatus or equipments, which they are now seeking to bring within the exclusion clause to exclude the same from the Modvat benefit allowed to the respondents by the learned Tribunal. Mr. Khaitan has led us through the decision of the learned Tribunal.;