TMI Blog1994 (8) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... h consisting of Members different from those now sitting in the Bench, the requirement of Rule 31 of CEGAT (Procedure) Rules, will not be met. He, therefore submitted that the reference application should be heard by the Bench consisting of the same Members who passed the order under reference. 2. It was pointed out to the learned JCDR, Shri Mathur by the Bench that under Rule 31 cited by him, the same Bench which heard the appeal giving arise to the application for reference to the High Court shall hear such application unless the Honourable President directs otherwise and the purport of this will become clear when one looks into the subsequent Rule 31A which specifically lays down that `application for rectification of mistake apparent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Mathur submitted that the above decision had been issued by the Honourable President in terms of the saving clause unless the President directs otherwise appearing in Rule 31 of CEGAT (Precedure) Rules. Shri Mathur contended that this would go to show that it will be necessary for the President to issue a specific direction in respect of each reference application where the Members hearing the same happen to be different from those who constituted the original Bench which decided the appeal. A general order may not be enough. That would be the position in view of the language of Rule 31, he concluded. 4. Shri A.N. Haksar, learned Senior Advocate who appeared for the respondents contended the above submissions of Shri Mathur, and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is to be heard by Members of the concerned Bench if they happened to be different from those who heard the appeal earlier and passed the order giving rise to the reference application. We also note that Rule 31 dealing with reference application is significantly worded differently from Rule 31A relating to rectification applications. However, this point had not been raised before the Honourable President of the Tribunal when he had passed the order which has been referred to earlier. Hence his order was with reference to the saving clause in Rule 31. Even on this point, as we have already observed above, the order passed would cover all reference applications involving changed composition of the concerned Bench. It is not that the said Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l decisions and had followed the same. Actually, these two decisions of the Tribunal have not been accepted by the Department and reference applications as required have been filed by the concerned Collector. He also refered to the Tribunal decision in the case of Rapsri Engineering Industries (P) Ltd. reported in 1991 (56) E.L.T. 449 wherein it had been held that graphite rods used for molten metal only performs the mechanical functions and hence constitute apparatus which is excluded for modvat benefit. On mercury cathode, Shri Singhal submitted that its functioning as an electrode is its main function namely to conduct electricity through brine solution to produce caustic soda and any chemical function which it may perform is secondary a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders requiring a reference to the High Court. He pleaded that the reference application be dismissed. 10. We have considered the submissions. We have gone through the record. Though, as pointed out by Shri Haksar, the learned Counsel, the Departmental Representative, during the hearing of the appeal, had not made any submission on the merits of the issue but had merely stated that it was correct that the issue was covered by two Tribunal decisions, we cannot accept his argument that the points raised in the reference application do not justify a reference to the Honourable High Court on that score. A question of law arises for reference to the High Court if that question has been decided by the Tribunal irrespective of whether that had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in the present case had not considered the fact that mercury and graphite electrodes were part and parcel of the electrolytic cell used in the manufacture of caustic soda and that these are such parts has been sought to be supported by the decisions in Rapsri Engineering Industries and Mukand Iron and Steel reported in 1991 (56) E.L.T. 449 and 1990 (45) E.L.T. 84 respectively. In these cases it had been held that (1) graphite rods used to the course of manufacture of casting for stirring molten metal are in the nature of appliances or equipment and (2) refractory bricks used as lining material in the furnace were not eligible for modvat credit. In the later case, the appellants had contended that refractories were not merely used as linin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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