Hon'ble Subhash Chandra Nigam,J.
Heard Shri learned S.P. Kesharwani, learned counsel for the department.
The Tribunal has referred the following question for consideration:
"Whether gatepasses issued prior to 1.4.94 but endorsed after that date would fall under the coverate of Entry No. 10 in the table to the Notification No. 16/94-CE(NT) dated 30.3.94 and would consequently become eligible documents for taking credit under Modvat Scheme?"
Shri S.P. Kesharwani, learned counsel for the department very fairly submitted that the question involved in the present reference has been answered by this Court in favour of the assessee and against the department in C.E.R. No. 79 of 1999, C.C.E., Meerut Vs. M/s Elegant Electrical Ltd. Similar question also came up for consideration before the Bombay High Court in the case of Commissioner of C. Ex., Mumbai-1 Versus Moosa Haji Patrawala P. Ltd, 2009 (243) E.L.T. 35 (Bom.). The Bombay High has held as follows:
"2. It may be noted that in Commissioner of Central Excise, Ahmedabad-I v. Gujarat Medicraft Pvt. Ltd., reference was made at the behest of the Commissioner of Central Excise, Ahmedabad-I before the Gujarat High Court and Gujarat High Court after considering the language of the said Notification and the scheme, came to conclusion that it was open to the assessee to get the benefit of the gate-passes, which were issued prior to 1-4-1994 but before 30-6-1994. Similar reference as made before this Court, was made before the Gujarat High Court and Gujarat High Court has answered the reference against the Revenue. The learned counsel for the respondents points out that authority of Gujarat High Court has been followed by Punjab & Haryana High Court in CCE, Commissionerate-I, Chandigarh v. Suraj Udyog - 2002 (144) E.L.T. 293 (P & H) as well as by Himachal Pradesh High 2 Court in Commissioner of Central Excise v. Saras Poly Pack - 2008 (232) E.L.T. 418 (H.P.). The learned counsel also pointed out that the Central Board of Excise & Customs has issued Circular No. 600/37/2001-CX, dated 19th November, 2001 wherein it is specifically stated that judgment of Gujarat High Court in the reference of M/s Krishna Chemicals, Ahmedabad passed on 22.11.2000 wherein it was held that gate passes issued prior to 1-4-1994 but endorsed thereafter would be valid documents for availment of credit, subject to credit being taken on or before 30th June, 1994 has been accepted by the Board and instructions were issued that all the pending cases be decided by following the ratio of judgment. It appears that reference in Krishna Chemicals was decided by the Gujarat High Court along with the reference in case of Gujarat Medicraft Pvt. Ltd. In view of the above authorities and the circular issued by the Central Board of Excise and Customs, Revenue cannot take a different view."
We have perused the order dated 09.07.2009 passed by this Court in C.E.R. No. 79 of 1999, C.C.E., Meerut V/s M/s Elegant Electrical Ltd. and the order dated 10.6.2009 passed by the Bombay High Court in the case of Commissioner of C. Ex., Mumbai-1 Versus Moosa Haji Patrawala P. Ltd, 2009 (243) E.L.T. 35 (Bom.). The question involved in the present reference is squarely covered by the aforesaid two decisions. Respectively following the two aforesaid decisions, this Court answer the question referred in affirmative i.e. in favour of the assessee and against the department. The reference is accordingly answered.
Date: 12.1.2010 MK/