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TMI Blog2010 (2) TMI 972X X X X Extracts X X X X X X X X Extracts X X X X ..... . 43 of 2007 - - - Dated:- 16-2-2010 - Satish K. Agnihotri and Manindra Mohan Shrivastava, JJ. Ms. Ritu Mishra, Counsel, for the Petitioner. Shri Bhishma Kinger, SC, for the Respondent. JUDGMENT This appeal under Section 35G of the Central Excise Act, 1944 (for short the Act, 1944 ) arises from the Final Order No. 258-261/07-SM(BR), dated 27-12-2006 passed by the Customs, Excise Service Tax Appellate Tribunal, Principal Bench, New Delhi in Appeal No. E/513-516/2005-SM. 2. The facts, in nutshell, are that the appellant-company is engaged in the manufacture of excisable goods. The appellant-company was also availing Duty credit on the input used in or in relation to manufacture of the aforesaid finished goods in terms of Rule 57-A of the Central Excise Rules, 1944 (for short the Rules, 1944 ). The appellant availed irregular Duty credit of Rs. 2,67,364/-, Rs. 71,024/- and Rs. 1,00,878/- against certain invoices issued by M/s. Jain Udyog, and M/s. Tara Re-Rolling Mills, Tedesara. Three show-cause-notices being C. No. V (72) 15-63/Off/98/Adj/21351-56 dated 9-9-1999 involving Modvat credit of Rs. 2,67,364/- availed during the period September, 1994 to August, 1995 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts had not received any inputs and only received the invoices and availed the credit. The Revenue conducted the investigation at the supplier end and it was found that the supplier of inputs received the goods from SAIL and same are sold to some other buyers. In investigation from transporter shows that goods were not transported to appellants place. In the circumstances, I find no infirmity in the impugned order. In respect of the penalty, I find that Commissioner (Appeals) has set aside the penalty imposed under Section 11AC. However, imposed penalty under Section 173-Q (sic) which provides penalty upto three times of value of offending goods. In the present case the penalties were imposed maximum to the value of the goods. Therefore, I find no ground to interfere with the quantum of penalty also. The appeals are dismissed. 6. The appellant has pleaded the following substantial questions of law in the memo of appeal subsequently by way of amendment, which reads as under : SUBSTANTIAL QUESTIONS OF LAW (1) Whether the learned Appellate Tribunal failed to exercise its jurisdiction while granted unconditional stay and confirmed vide stay order No. 547-50/05 NB SM dated 26-5-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat, the Appellant had approached to Respondent No. 2 for a decision on the limited point that if the Appellant did not receive the impugned inputs, then how was it possible for the Appellant to manufacture the final excisable goods from inputs not received at all ? The Respondent No. 2, at the time of personal hearing of stay matter, correctly admitted that prima facie the facts of the case were in favour of the Appellant, that the Appellant had produced before authorities all documentary evidence to establish receipt of inputs. The Respondent No. 2 also correctly admitted that sufficient amount was deposited by the Appealer to safeguard the interest of Revenue. Therefore, the Appellate Tribunal granted unconditional stay to the Appellant vides stay Order Nos. 547-50/05 NB/SM dated 26-5-2005. However, in sharp contrast, at the time of final hearing, the learned Appellate Tribunal only went by the records relied upon by the Investigating Officers and not by those documents/arguments put forth on record before the Appellate Tribunal. Accordingly, it has been stated in Para No. l of the Order appealed against in the impugned order, after going through the evidence on record, the fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellate Tribunal also failed to appreciate that if the documents show that the inputs were received, used in the manufacture and excisable final products and the goods so manufactured were cleared on payment of Duty by the Appellant, then how could modvat credit be denied to them for any lapse at the end of the supplier manufacturer, if any ? The learned Appellate Tribunal - Respondent No. 2 have grossly erred in coming to a decision that the Appellant 2 have irregularly availed Modvat Credit in the instant case that the impugned goods were not received by the Appellant 2 in their factory. The Respondent No. 2 has also along discussed the fraud committed by the suppliers but has miserably failed to substantiate the charge of collusion of Appellant 2 with the supplier with an intention to evade Duty also has failed to prove any act of omission or commission on the part of the Appellant 2. The learned Appellate Tribunal has thus, upheld such defective incomplete findings of the Adjudicating Authority and Appellate Commissioner. The Respondent No. 2 failed to appreciate that it has simply been stated in the Order-in-Original that the Appellant 2 countered he could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s including (the invoices under disputed) on the basis of which the Modvat Credit has availed and utilized; e. How the concerned Authority was accepting their Invoice Book intimation every time? f. How can the same goods suffer Central Excise Duty twice - one at the manufacturer supplier end and two at the Appealer s end ? (11) Whether the learned Appellate Tribunal failed to exercise its jurisdiction by ignoring the case of Commissioner of Central Excise, Chandigarh v. Neepaz Steels (India) reported in 2007 (213) E.L.T. 100 (Tri.- Del.) held that : Penalty on registered dealer - Inputs, non supply of - Vehicle Numbers mentioned in invoices alleged to be not of Good Transport Vehicle - Dealer received payment from various manufacturers through cheques and Demand draft and inputs supplied were duly received by the manufacturers and used goods manufactured which were cleared on payment of duty - No evidence that manufacturers used some alternative raw materials then which was mentioned any invoices - Penalty set aside - Rule 25 of the Central Excise Rules, 2002. (12) Whether the learned Appellate Tribunal failed to exercise its jurisdiction by ignoring the complete track ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant has failed to produce any document to demonstrate that the questions (sic) grounds raised hereinabove were raised before the Commissioner of Central Excise (Appeals), Raipur as well as before the Customs, Excise Service Tax Appellate Tribunal, Principal Bench, New Delhi and thereon, the finding has been recorded. Thus, the above stated questions of law, in our considered opinion, do not constitute questions of law much less the substantial questions of law. 10. Section 35G of the Act, 1944 reads as under : 35G. Appeal to High Court. - (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. 11. Section 260-A of the Income Tax Act, 1961 (for short the Act, 1961 ) reads as under : 260A. Appeal to High Court. - (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s too wide. The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law. 15. The ratio laid down in Sir Chunilal V. Mehta (supra) was referred approvingly in Mahindra and Mahindra Ltd. v. Union of India and Another. 16. Needless to say if there is no substantial question of law involved, the appeal has to be dismissed. (See Boodireddy Chandraiah and Others v. Arigela Laxmi and Another). 17. Applying the well-settled principles of law to the facts of the case on hand and for the reasons menti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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