SUPREME COURT OF INDIA

Before:- B.N. Kirpal and Ruma Pal, JJ.

Civil Appeal No. 14 of 2001 (Arising out of S.L.P.(C) No. 20486 of 2000). D/d. 03.1.2001.

Commissioner of Central Excise, Meerut-II - Appellant

Versus

M/s Ester Industries Limited - Respondent

Central Excise Rules, 1944, Rule 57-A - Central Excise Tariff Act, 1985, Heading 27.10 - Modvat credit - Reference to High Court - Questions whether HSD can be taken as input as mentioned in Section 'AAA' and as defined under Rule 57-A of the Central Excise Rules and whether the Modvat credit can be allowed on the High Speed Diesel Oil falling under Heading 27.10 of Central Excise Tariff Act, 1985 which cannot be taken as input and which is specifically excluded from the purview of the Modvat under Rule 57-A - Tribunal declining to make reference to the High Court on these two questions - Held, Tribunal was wrong in declining to make a reference to High Court.

[Para 3]

ORDER

1. Issue notice. Mr. Ashok Kumar Singh accepts notice.

2. Leave granted.

3. With the consent of the parties, we have heard the learned counsel on merits. In our opinion, the Tribunal was wrong in declining to make a reference. We, accordingly, direct the Tribunal to refer the following two questions to the High Court:

"(a) Whether HSD can be taken as input as mentioned in Section 'AAA' of Central Excise Rules, 1944 and as defined under Rule 57A of Central Excise Rules, 1944 ?

(b) Whether the modvat credit can be allowed on the High Speed Diesel Oil falling under Heading No.27.10 of Central Excise Tariff Act, 1985, which cannot be taken as inputs and which is specifically excluded from the purview of the modvat under Rule 57A of Rules ?"

4. The appeal is allowed in the aforesaid terms.

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