TMI Blog2007 (12) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... [Order per : K.L. Manjunath, J.]. - Pursuant to the directions of this court in C.P. 810/2002 dated 29-1-2004, following two questions are referred to answer by the Customs, Excise Service Tax Appellate Tribunal, South Zonal Bench, Bangalore : 1. Whether in the facts and circumstances herein the Tribunal was right in denying the benefit of Modvat credit on the universal Measuring Machine, merely by recording a finding that no material has been produced to counter the positive finding recorded by a Lower Appellate Authority, without considering the entire aspects involved in the appeal? 2. Whether in the facts and circumstances herein, the Tribunal should have actually allowed the Modvat credit on the said universal Measuring Machine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, tribunal has also affirmed the order is passed by the other authorities Thereafter, on a civil petition filed by the petitioner, this court directed the tribunal to formulate questions of law for reference of this court. Accordingly, tribunal has framed the questions of law cited supra. 6. According to the counsel for the petitioner, authorities did not consider the reply filed by the petitioner to the show cause notice. According to her, if the reply had been considered by the authorities properly, they would not have held that the machine in question is not being used either for manufacturing the final products or intermediary products. Taking us through the reply to the show cause notice filed by the assessee, she contends that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the conclusion that the goods manufactured by the assessee would put into specific measurement or design. If a machine is used in order to find out whether the goods manufactured by the assessee fit into specification or design, such a machine cannot be termed as a machine which does not fall within the definition of capital goods. We may also accept the arguments of the counsel for the revenue that even without this machine product can be manufactured by the assessee. But that does not mean that the revenue can direct the assessee to manufacture goods without the use of the machine in question. If the assessee with an intention to compete in the present day market, is of the opinion that using of such machinery would enhance the quality ..... X X X X Extracts X X X X X X X X Extracts X X X X
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