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TMI Blog1993 (7) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... resent Reference Proceedings, M/s. Hindustan Motors use resins for mixing with sand to impart some cohesive property to it in order to prepare moulds which are then placed in the mould boxes made of metal. Molten metal is poured into the mould box containing the sand mould. After the casting process is over, the product castings are removed by breaking the sand mould. It was contended by the respondents that sand moulds are not actually goods as they are not capable of being marketed and are formed only for the duration of the casting process and are formed in the Mould Box. They are not stable and cannot be stored or transported. They are not marketed and are also not capable of being marketed. Hence, the criterion of marketability as decided by the Honourable Supreme Court in Ambalal Sarabhai Enterprises v. Collector of Central Excise - 1989 (43) E.L.T. 214 and Bhor Industries v. Collector of Central Excise - 1989 (40) E.L.T. 280 not being satisfied, Sand Moulds cannot be taken to be goods. Hence, the resins in question cannot be taken to be used in the manufacture of sand moulds, these being not goods. The fact that an exemption notification has been issued for sand moulds does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smissing the S.L.P. filed by the Commissioner of Income Tax v. Bhageeratha Engg. Ltd. reported in 199 ITR 13. The High Court decision that it is not open to the Revenue to contend in the References that the assessee-company is not an industrial undertaking since the finding of fact in that regard entered by the Tribunal had not been expressly challenged by an appropriate question raised in the reference was affirmed by the Supreme Court. Again, in Commissioner of Income Tax, West Bengal v. Indian Mica Supply Co. P. Ltd. - 77 ITR 17 the Supreme Court held that if the fact finding Tribunal came to the conclusion on evidence that the expense incurred is wholly and conclusively for the purpose of the business, then that decision cannot be disturbed if there is evidence upon which it could arrive at such a conclusion. 5. The Madras High Court had held in C.I.T. v. Sundaram Industries Ltd. that a reference cannot be made of an academic question. If it had been decided that a particular transaction does not attract the provisions of Section 52(2) of the Income Tax Act, 1961, the question of computing capital gains on the basis that it applies, becomes academic and cannot be referred. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, this becomes an academic issue because the Tribunal had held, on merits, that they are eligible for modvat credit in the present case and the finding on time bar will become material only if, on merits, it had been held that they are not entitled to the said benefit. Shri Bagaria pleaded that the Reference Application be dismissed. 8. Before taking up the points argued before us for examination, we find that there is a preliminary question. The Collector had referred two questions relating to our decisions in two Appeals filed before us though both the Appeals were disposed of by a common order bearing two Numbers viz. A-696 697/CAL./92, dated 19-10-1992. In view of the larger Bench decision of this Tribunal in Ekantika Copiers (P) Ltd. v. Collector of Central Excise, Meerut reported in 1991 (56) E.L.T. 350 = 1991 (36) ECC 199 holding that separate Appeals are to be filed for different orders even if issued as a combined order and this Bench s own decision vide Order No. R.A. 397/Cal./91, dated 10-6-1991 in Collector of Customs, Calcutta v. Anandilal Banwarilal Co., [Since reported in 1992 (59) E.L.T. 90 (Tri.)] holding that two separate Reference Applications are to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention that the resins are only inputs for Sand Moulds and not to be construable as inputs in the manufacture of steel castings has been questioned in the present application. It has been pointed out that as the costs and sale value of moulds are so meagre in relation to the product iron and steel castings that no body engaged in this industry would like to purchase/sell the same in the market. The shapes of the castings vary considerably and it is not usual to supply such moulds from one place to another because of its odd sizes and shapes. As such, those engaged in the manufacture of steel castings, themselves manufacture the sand moulds as per their requirements and this practice is followed in the trade. The mere usage and practice followed in the trade debars the sand moulds from being marketed but that does not mean that they could not be marketed. As such it would not be proper to infer that these are not goods. 11. The above arguments do not support the contention raised. The practice in the trade of the sand moulds not being marketed is attributed to the odd sizes and shapes thereof. On the contrary, it was categorically claimed by the present respondents that sand mou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the manufacture of iron/steel castings and accordingly modvat credit by way of duty paid on the resins cannot be permitted vis-a-vis the products, castings. The Tribunal had given the finding that Resins are inputs in relation to the manufacture of the dutiable castings and their use in the preparation of sand moulds is not a separate manufacturing process, having for its aim the emergence of the excisable product, Sand Mould. Since this finding has been questioned in the application for the reasons discussed by the Collector and the question actually posed for reference to the Honourable High Court, that has to be considered as a question of law arising from the Tribunal s order which does not get whittled down by the absence of a specific question of law framed as to whether the Tribunal was right in holding that sand moulds are not goods and based its decision on such a finding. We, therefore, refer the following question to the Honourable High Court of Calcutta for their valued ruling : - Whether resins used in the preparation of sand moulds which are used in the manufacture of iron/steel casting are entitled to modvat credit and whether such resins can be treated as i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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