TMI Blog1992 (10) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondents. 3. At the outset, it was pointed out to both the sides by the Bench that the Tribunal s order which is the subject matter of the Reference Application had disposed of two Appeals, one filed by the Collector and the other by the present respondents against the same Order-in-Appeal passed by the Collector of Central Excise (Appeals), Calcutta and accordingly, there should have been two separate Reference Applications. The Tribunal s order had been received by the Collector on 18-6-1992. As in terms of sub-section (1) of Section 35G, the Reference Application is to be presented within a period of sixty days which period can be relaxed by the Tribunal upto another 30 days only, the Application already made can be taken to be only in respect of one appeal and it has to be taken that the application in respect of the other appeal has not been filed. Since the amount as well as the issue involved in the first point viz. whether Modvat credit is admissible in respect of Aloxide Paper/Coated Abrasive is more than what is at stake in the other question raised, the Reference Application already filed is treated as relating to appeal in respect of Aloxide Paper Coated Abrasiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oudhuri. Even if this preliminary point raised by him is not accepted, he submitted that the Tribunal has considered the provisions regarding the product in the Central Excise Tariff and come to a correct decision. It had been categorically held that the material is not a tool or any other item excluded from the scope of the expression inputs under the explanation in Rule 57A. He, therefore, pleaded that the Reference Application be dismissed. 6. I have considered the submissions made by both the sides. The preliminary point raised by Shri Roy Choudhuri about the question raised being one of fact and not of law does not appeal to me. On the finding that the Aloxide Paper/Coated Abrasive is not a tool will depend on the question of admissibility of Modvat credit as tools are excluded from the said benefit vide Explanation under Rule 57A and this has a legal significance and hence the question posed cannot be relegated to the status of a question of fact, vis-a-vis a question of law. 7. Having rejected the first point urged by Shri Roy Choudhuri learned Counsel for the respondents, I proceed to consider the other point made by him regarding the actual finding in the Tribunal s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tance or in relation to the manufacture of the final product do not rule out the benefit. The grounds set along with the Reference Application contains the following submission regarding Coated Abrasive/Aloxide paper :- The Coated Abrasive/Aloxide paper are used for polishing/grinding hand tools, they work more as inputs. These goods have been specifically excluded under Rule 57A as appliances, used for manufacture of goods and are thus not entitled to Modvat Credit. Naturally Coated Abrasive/Aloxide paper cannot be considered as inputs and cannot be considered for Modvat Credit. The Chapter Note is for the purpose of Tariff classification i.e. for the purpose of classification for assessment of duty not for Modvat purposes. Rule 57A. does not say anything regarding Tariff classification. The Aloxide paper/Coated Abrasive are basically tools and appliances used for polishing purposes. 9. It is stated that the paper works more as producer goods. The term producer goods is a synonym for capital goods which is defined in the Reader s Digest Universal Dictionary, First Edition, 1988 Reprint (at page 244) as goods used in the production of commodities. It is difficult to accept th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity is consistent with a number of decisions of the Tribunal which are discussed below :- (1) Collector of Central Excise v. Avery India Ltd. - 1991 (56) E.L.T. 790. - Compressed oxygen gas and dissolved acetylene cannot be termed as tool though they may perform the function of cutting. The plea of the department that as the use of the gases, in essence, is to cut the materials they have to be considered as a cutting device and hence ineligible for Modvat credit was turned down. (2) Collector of Central Excise v. Bimetal Bearings - 1991 (56) E.L.T. 578 Tribunal SRB. - Chemicals used for electroplating process held to be eligible for Modvat benefit rejecting the department s plea that they could very well be termed as capital goods and that capital goods do not mean only goods that are capable of producing other goods and that it rather means goods that are used in producing other goods and that the chemicals did not form part of or go into the final products and the nature of function is that of apparatus, machinery or tools as the case may be. Because of their functional role they can be considered in the nature of tools or apparatus. This plea was rejected by the Tribunal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Tribunal is bound to refer a case in which it has merely referred to certain provisions of law and determined the point on the basis of the said provisions. In our opinion, a point of law cannot be equated with the expressions question of law . The question must be a disputed or disputable question of law. The object of reference is to get a decision from the High Court on a problematic or debatable question and not an obvious and simple point of law. The meaning of the term Question , in the context, means a subject or point of investigation, examination or debate, a problem; as a delicate or doubtful question. In our opinion, the Tribunal is obliged to refer only a question of law which calls for investigation, examination, debates or when it is a dubious problem. However, if a point of law decided by the Tribunal is positive, certain, definite and sure, there is no obligation on the part of the Tribunal to refer the matter, as the point cannot be termed as a question of law. When a decision is apparently correct and there is no scope for any debate or dispute or difference, it does not fall within the expression a question of law , it may be stated as an obvious ..... X X X X Extracts X X X X X X X X Extracts X X X X
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