- (1.) This reference petition under Section 35H(1) of the Central Excise Act, 1944 (for brevity, the Act') has been filed by the revenue challenging order dated 6-2-2002, passed by the Customs, Excise and Gold (Control) Appellate Tribunal, Northern Division Bench (now known as Customs, Excise and Service Tax Appellate Tribunal') (for brevity, the Tribunal'), with a prayer to direct the Tribunal to draw statement of the case and refer the following question of law to this Court for determination:- "Whether the Tribunal has erred in law in allowing the Modvat credit by placing reliance upon a non-speaking order on issues raised by the department in the grounds of appeal, passed in party's own case?"
(2.) During the pendency of the instant petition, the revenue has filed Civil Misc. No. 23006-CII of 2007 seeking permission of this Court for reframing the question of law, which is as under :- "Whether the cost of packing material having not been included in the preceding financial year in the assessable value of the final product would the packing material qualify as an input for the purpose of Modvat credit?"
(3.) After hearing learned Counsel and perusing the record we find that there is no merit in the instant reference petition and the same is liable to be declined. The Tribunal in para 5 of its order has placed reliance on the earlier case between the parties deciding similar issues. It has quoted the following para from the earlier order :- "In the instant case we find that the cost of glass bottles and plastic crates is included in the assessable value of the aerated waters and hence in terms of Explanation under Rule 57A, Modvat credit will be admissible.";