1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CENTRAL EXCISE REFERENCE APPLICATION NO. 4 OF 2002 Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : J.P. DEVADHAR AND B.P. DHARMADHIKARI, JJ. JUNE 21, 2007. Heard Shri Mishra, learned counsel for the applicant. The Commissioner of Central Excise, Nagpur, has filed this application under Section 35H(1) of the Central Excise Act, 1944, stating that the following questions of law arise out of the order of the Tribunal : “(i) Whether Refractory Bricks and Refractory material viz., Stopper Head Foundry Flux, Tundish liner, Refractory Castables, Tundish Board Magnapack Powder falling under Heading No. 3816.00, 3823.00 and 6807.00 of Central Excise Tarrif Act, 1985, fall within the ambit of definition and scope of the terms “inputs” used in Rule 57-A of the erstwhile Central Excise Rules, 1944 (as it existed then) in relation to manufacturer of steel products or not and whether MODVAT 2 Credit on such items would be eligible in terms of Rules 57-A of the said Central Excise Rules, or not. (ii) Whether it is correct under the law to confirm the admissibility of MODVAT Credit on such materials under Rule 57-A on the basis of pronouncement of the Hon'ble High Court in Calcutta when there is contrary decision of the Hon'ble High Court in Karnataka on identical issue and the Larger Bench of CEGAT New Delhi has already referred the question of law involving same identical issue to the Hon'ble Supreme Court under Section 35-H of the Central Excise Act, 1944, and also when the same matter is before the Hon'ble Supreme Court for its decision in Civil Appeal No.2128 of 1997 filed by the Commissioner of Customs & Central Excise in the case of Kesari Steels as reported in 1997 (95) ELT-A- 226(SC). (iii) Whether it is correct to hold the admissibility of MODVAT Credit on such materials on the basis of decision of the Hon'ble High Court of Calcutta and the decision of the Hon'ble CEGAT, Northern Bench, New Delhi, when the Appeal and reference application are pending for decision 3 before the Hon'ble Division Bench of High Court Calcutta and the Hon'ble High Court of M.P. respectively. (iv) Whether it is correct to hold under the law that the goods covered under the definition of “Capital Goods” subsequently should be “input” eligible for MODVAT Credit under Rule 57-A not governed by the exclusion clause of Rule 57-A.” The dispute in this case pertains to availability of MODVAT Credit of Refractory Bricks and Refractory material used as lining material in the furnace put up by the respondent/ assessee. In the light of the Board's Circular dated 3.4.2004, the learned counsel for the applicant fairly states that the MODVAT Credit is available in respect of Refractory bricks and Refractory material. In this view of the matter, the application is dismissed. No costs. JUDGE JUDGE *GS.