- (1.) THE revenue has approached this Court by filing the present petition under Section 35H(1 of the Central Excise Act, 1944 (for short 'the Act') seeking a direction to the Custom, Excise and Gold (Control) Appellate Tribunal (for short 'the Tribunal') (now known as Central Excise and Service Tax Appellate Tribunal) arising out of Final Order No. A/752/99 -NB, dated 3 -8 -1999 to refer the following question of law to this Court for opinion: Whether in the facts and circumstances of this case the Appellate Tribunal is correct in holding that the electrical transformer is capital goods as defined under Rule 57Q of the Central Excise Rules, 1944, particularly when these are general purpose electrical items prior to 16 -3 -1995?
(2.) WE have heard counsel for the parties.
(3.) THE present petition is delayed of 69 days for which an application of condonation of delay has been filed. However, we thought it appropriate to deal with the case on merit first. Brief facts of the case are that the assessee in the present case, who is registered with the Department, availed Modvat credit of Rs. 26,100/ - under Rule 57Q of the Central Excise Rules, on account of purchase of duty paid capital goods i.e. electrical transformers falling under heading No. 8504. Finding that the assessee had wrongly entered the Modvat credit in its RG 23 C Part II, the electrical transformer not being covered under the Scheme for availing Modvat credit, the adjudicating authority issued show cause notice. The assessee controverted the allegation in the show cause, inter alia, submitting that even prior to the issuance of Notification No. 11/95 -C.E. (N.T.), dated 16 -3 -1995 "Capital Goods" which were used in manufacturing of final products were eligible for Modvat credit in terms of Rule 57Q and 57T of the Rules and that the term "Capital Goods" is quite wide to include electrical transformer therein. Rejecting the contention of the assessee, the Assistant, Commissioner Central Excise disallowed Modvat credit of Rs. 26,100/ - vide order dated 25 -9 -1995.;