IN THE HIGH COURT OF JUDICATURE AT PATNA TAX No.7 of 2003 COMMISSIONER, CENTRAL EXCISE, PATNA, 4TH FLOOR, C.R. BUILDING BIRCHAND PATEL PATH, PATNA-800001. …….. Applicant Versus M/S BARAUNI CARBONS PVT.LTD, AT SOKHARA, BARAUNI … Respondent ----------- 9 28.01.2010 Heard Mrs. Nivedita Nirvikar for the petitioner, and Mr. Satyabir Bharti for the respondent. The Revenue has filed this application under Section 35H of the Central Excise Act, 1944, and is directed against the order dated 9.12.2002, passed by the Customs, Excise and Gold (Control) Appellate Tribunal, Kolkata, in Appeal no. E-71 of 2002 (M/s Barauni Carbons Pvt. Ltd. versus Commissioner of Central Excise, Patna), whereby it has been held that the Revenue is entitled to reverse the MODVAT credit for the inputs contained in final product lying in stock as on date when the respondent herein opted for exemption under the Small Scale Industries Exemption Scheme w.e.f. 1.4.1997, 2. We have perused the materials on record, and considered the submissions of learned counsel for the parties.. The admitted position is that the factory in question is closed since 2003-04, and, therefore, the credit balance of MODVAT in the name of respondent herein can now be considered in accordance with law, namely, whether or not it can be reversed as the case of the Revenue is, or it can be utilised at a later stage as is the case of the respondent herein. In view of the admitted position that the factory is closed, this question appears to us is 2 of academic nature at the present stage, having no tax implication. In that view of the matter, we refuse to go into the question and do not pronounce upon the correctness or otherwise of the impugned judgment. We are supported by the order of the Supreme Court in the following cases: (i) Commissioner of Central Excise and Customs (Appeals), Ahmedabad versus Narayan Polyplast and Ors reported in (2005) 10 SCC 121, and (ii) Commission of Central Excise and Customs, Vadodra versus Narmada Chematur Pharmaceuticals Ltd. reported in (2005) 10 SCC 123. The appeal is, therefore, disposed of with the observation that the issues raised in this case shall be considered, if the occasion ever arises. The appeal is accordingly disposed of. pkj (S.K. Katriar, J.) ( Kishore K. Mandal, J. )