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TMI Blog2014 (5) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... oner replied the respective show-cause notices and denied the allegation of suppression of actual production figures and annexed certain documents in support of the defence. The adjudicating officer confirmed the demand of duty and imposed penalty and interest. The said order is carried in two separate appeals before the CESTAT. In the said appeal, two separate applications were filed for waiver of the pre-condition deposit under Section 35 F of the said Act. The CESTAT set aside the orders in original passed by the adjudicating authority and remanded the matter for fresh considerations in the light of the decisions rendered in case of Bharat Ingots & Steel Comp; Pvt Ltd. & Ors; delivered on 10th December, 2008. The proceeding was reconsidered on remand and a duty was imposed upon the petitioner for alleged suppression of the production figures taking into consideration the report submitted by Dr. Batra of IIT Kanpur. The said order is again challenged before the CESTAT and the application for waiver of pre-condition deposit filed therein is disposed of by the impugned order directing the petitioner to deposit 25% of the demand duty which is challenged in this writ petition. The m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct is amenable to be challenged in an appeal before the High Court under Section 35 G of the said Act. It is, thus, submitted that any order includes an order under Section 35 F of the said Act and not restricted to the final order as held by the division bench in case of Ambika Nahar Exports & Anr. -vs- Commissioner of Customs (Port) & Ors; reported in 2007 (3) CHN 625, Metal Weld Electrodes -vs- CESTAT, Chennai reported in 2014 (299) ELT 3 (Madras). The petitioner further submits that once the right of an appeal is provided under the statute, the High Court in exercise of the power of judicial review should not interfere with such order and placed reliance upon a judgment of the Supreme Court in case of Raj Kumar Shivhare -vs- Asst. Director, Directorate of Enforcement reported in 2010 (253) ELT 3 (S.C.). In reply, the petitioner submits that the existence of alternative remedy is not an absolute bar to entertain the writ petition, if it can be demonstrated that the authority or the tribunal has acted contrary to the clear interpretation and/or pronouncement of the Tribunal or the Court. By placing reliance upon a judgment rendered by me in case of M/s Nicco Corporation -vs- Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued to the appellant therein for receiving unauthorized payment worth Rs. 5 Crores from person living outside the country in connection with illegal cricket baiting operation. The said allegation was proved against the appellant and a penalty is Rs. 2 Crore was imposed. The said order was carried before the Appellate Tribunal wherein an application filed for dispensation of pre-deposit of penalty was rejected. Section 35 of FEMA provides an appeal against any decision and order of the Appellate Tribunal to the High Court. The appellant filed a writ petition before the High Court in stead of filing an appeal under the aforesaid provisions which came to be dismissed on the ground of maintainability. The Apex Court held that where the statutory forum is created by law, a writ petition should not be entertained ignoring the statutory dispensation, it would be relevant if Section 35 of FEMA is quoted herein below which reads thus: "35. Appeal to the High Court.- Any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to him on any ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be substantial, the question of law must be debatable and have a material bearing on the decision of the case, in so far as, the rights of the parties are concerned in these words: "The phrase "substantial question of law", as occurring in the amended section 100 is not defined in the Code. The word substantial, as qualifying "question of law", means- of having substance, essential, real of sound worth, important or considerable. It is to be understood as something in contradiction with technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words " of general importance" as has been done in many others provisions such as section 109 of the Code or article 133 (1) (a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta, AIR 1928 PC 172, the phrase "substantial question of law" as it was employed in the last clause of the then existing section 110 of the Civil Procedure Code (since omitted by the Amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a substantial question of law. To be "substantial", a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law "involved in the case", there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis." Had it been a case that the legislature intended to provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... din reported in (2012) 8 SCC 148, it is held that to be substantial, the question of law must be debatable and must have a material bearing on the decision of the case and even the facts can be gone into provided the findings thereupon is vitiated by non-consideration of the relevant evidence or an apparent erroneous approached to the matter in these words: "66. In Oriental Investment Co. Ltd. v. CIT this Court considered a large number of its earlier judgments, including Sree Meenakshi Mills Ltd. v. CIT and held that where the question of decision is whether certain profit is made and shown in the name of certain intermediaries, were, in fact, profit actually earned by the assessee or the intermediaries, is a mixed question of fact and law. The Court further held that: (Oriental Investment case, AIR p. 856, para 29) "29. ... inference from facts would be a question of fact or of law according as the point for determination is one of pure fact or a 'mixed question of law and fact' and that a finding of fact without evidence to support it or if based on relevant and irrelevant matters is not unassailable." 67. There is no prohibition to entertain a second appeal even on question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision in case of R.A. Castings (supra) can be aptly applied to. Before the Tribunal, other reports were also available than the report of Dr. Batra and the Tribunal recorded the note of caution that merely on the basis of electricity consumption, the person cannot be saddled with penalty in following words: "21. The law is well settled that the electricity consumption cannot be the only factor or basis for determining the duty liability that too on imaginary basis especially when Rule 173E mandatorily requires the Commissioner to prescribe/fix norm for electricity consumption first and notify the same to the manufacturers and thereafter ascertain the reasons for deviations, if any, taking also into account the consumption or various inputs, requirements of labour, material, power supply and the conditions for running the plant together with the attendant facts and circumstances. Therefore, there can be no generalzation nor any uniform norm of 1046 units as sought to be adopted by the Revenue especially when there is no norm fixed under Rule 173E till date by the Revenue and notified by it. The electricity consumption varies from one unit to another and from one date to another a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from one date to another and even from one heat to another within the same date. Therefore, no universal and uniformly acceptable standard of electricity consumption can be adopted for determining the excise duty liability that too on the basis of imaginary production assumed by the Revenue with no other supporting record, evidence or document to justify its allegations. The Tribunal has also considered the report of Dr. Batra, which has been relied upon for making the allegations that there was higher electricity consumption. It appears that Dr. Batra in his report has observed that for the production of 1 MT of steel ingots, 1046 units electricity required." The Apex Court declined to interfere with the said order as the special writ petition challenging the order of the Allahabad High Court was dismissed. Therefore, mere excess consumption of electricity without any corroborative evidence relating to the purchase of the raw material, conversion of the raw material into a final products and clearance from the manufacturing unit to the respective buyers are produced does not raise presumption of evading the duty. This has been a consistent view of the Tribunal based upon the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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