Judgment D.K.Jain, J. 1. C.M. No. 23382-CII of 2003 By this application the applicant prays for recall of order dated 25-7-2003 whereby the petition was dismissed in default. 2. For the reasons stated in the application, which is supported by an affidavit of the Counsel himself, we allow the same and recall order dated 25-7-2003. The petition is restored to its original position. 3. The application stands disposed of. C.M. No. 16505-CII of 2002 4. For the reasons stated in the application, the delay of one day in filing the reference petition is condoned. 5. The application stands disposed of. Main Case 6By this petition under Section 35H(1) of the Central Excise Act, 1944 , the Revenue seeks a direction to the Customs Excise and Gold Control Appellate Tribunal (for short the Tribunal) to state the case and refer the following question, stated to be one of law and arising out of Appeal No. E/461/2000-NB (SM) for the opinion of this Court :- Whether the Tribunal is correct in allowing Modvat credit on input viz,. Sulphur for which the assessee has not maintained the statutory records namely RG-23A Pt. I register as required under Rule 57G(2)(a) and when there is no evidence on record/nor the assessee could prove that the input viz. Sulphur was used in the manufacture of dutiable final products. The assessee is using Sulphur in the manufacture of exempted as well as dutiable final products? 7. Briefly stated the material facts giving rise to the present petition are as follows : The respondent, hereinafter referred to as the assessee took Modvat credit of Rs. 2,13,749/- in RG-23A/II on an item Sulphur but did not maintain register in RG-23-A/I, as prescribed under Rule 57G(3)(A) of the Central Excise Rules (hereinafter referred to as the Rules). The claim was disallowed by the Adjudicating Authority on the ground that the assessee had failed to maintain the said register, which is mandatory. In addition, a penalty under Rule 173Q of the Rules was also levied on the assessee for allegedly making a false claim. 8. Aggrieved the assessee preferred an appeal to the Commissioner (Appeals) but without any success. The matter was carried in further appeal to the Tribunal. By the impugned order, the Tribunal has allowed the appeal and has come to the conclusion that the assessee is entitled to the said Modvat credit. 8. Aggrieved the assessee preferred an appeal to the Commissioner (Appeals) but without any success. The matter was carried in further appeal to the Tribunal. By the impugned order, the Tribunal has allowed the appeal and has come to the conclusion that the assessee is entitled to the said Modvat credit. While holding so, the Tribunal has noticed that the assessee had in fact maintained register in RG 23-A/II instead of in RG 23-A/I. The Tribunal has observed that all the requisite details with regard to the receipt and consumption of the duty paid input namely Sulphur were maintained by the assessee. The Tribunal has also noted that it is not revenues case that the quantity of Sulphur shown as utilised for the manufacture of duty paid final product, namely, Sulphuric acid was in any manner at variance with the quantity of the final product shown by them in the records. 9. We have heard learned Counsel for the petitioner. Learned Counsel submits that since a mandatory statutory record was not maintained by the assessee, the Tribunal was not justified in allowing its claim for Modvat credit. It is thus, contended that the proposed question of law does arise from the order of the Tribunal. 10. We are unable to pursuade ourselves to agree with the Counsel. As noted above, the Tribunal has held that although there was some technical default on the part of the assessee, but all the requisite particulars, necessary for claiming the Modvat credit were available in the other records maintained by the assessee, wherein no defect was found by the Revenue. 11. We are of the opinion that the findings recording by the Tribunal are pure findings of facts giving rise to no question of law. In the light of the facts found by the Tribunal, namely, all the requisite particulars for the purpose of claiming Modvat credit were available in other records maintained by the assessee, which were otherwise found to be in order, the claim could not be denied on a technical ground. (See :- Patasibai and others v.Ratan Lal - (1990) 2 SCC 42). 13 Accordingly, the petition is dismissed.