IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.113 of 2005 Commissioner, Central Excise, Govt. of India, Patna, C.R. Building, Bir Chand Patel Path, P.O. G.P.O., Patna, P.S. Kotwali, Town and District Patna …….Appellant Versus M/s Prabhat Zarda Factory (India) Ltd. Muzaffarpur, New Area, P.O. & P.S. Sikandarpur, Muzaffarpur, Bihar ……..Respondent with MA No.42 of 2006 Commissioner, Central Excise, Govt. of India, Patna, C.R. Building, Bir Chand Patel Path, P.O. G.P.O., Patna, P.S. Kotwali, Town and District Patna …….Appellant Versus M/s Prabhat Zarda Factory (India) Ltd. Muzaffarpur, ……..Respondent with MA No.48 of 2006 Commissioner, Central Excise, Govt. of India, Patna, C.R. Building, Bir Chand Patel Path, P.O. G.P.O., Patna, P.S. Kotwali, Town and District Patna …….Appellant Versus M/s Prabhat Zarda Factory (India) Ltd. Muzaffarpur. ……..Respondent with MA No.51 of 2006 Commissioner, Central Excise, Govt. of India, Patna, C.R. Building, Bir Chand Patel Path, P.O. G.P.O., Patna, P.S. Kotwali, Town and District Patna …….Appellant Versus M/s Prabhat Zarda Factory (India) Ltd. Muzaffarpur. ……..Respondent ----------- For the Appellants : Mrs. Nivedita Nirvikar, Advocate For the Respondents: Mr. D.V. Pathy, Advocate 20 19.4.2011 The Department of Central Excise, Government of India, have preferred this batch of four appeals under section 35G of the Central Excise Act, 1944 (hereinafter referred to as „the Act‟), and are directed against a common order dated 19.8.2004, 2 passed by the Custom Excise and Service Tax Appellate Tribunal, East Zonal Bench, Kolkata, in Appeal No. EDM-265 of 2003 (The Commissioner of Central Excise, Patna Vs M/s Prabhat Zarda Factory (I) Ltd.), whereby six appeals at the instance of present appellants have been dismissed, and the common order dated 26.3.2002, passed by the learned Commissioner of Central Excise, Patna, for the six periods in question, has been upheld. The learned Tribunal has held that the assessee, the respondent herein, is not liable to pay penalty for short levy or non-levy of duty in terms of section 11AC of the Act, nor is liable to pay interest on delayed payment within the meaning of Section 11AB of the Act. 2. Before we proceed further, we wish to make it clear that the impugned order had given rise to six appeals in this court, four of which have been placed before us, and are being disposed of by a common judgment. The other two appeals, being M.A. No.49 of 2006 and M.A. No.50 of 2006, for two different periods, covered by the impugned order, are not before us and are not within our consideration. 3 3. M.A. No.113 of 2005, arises out of Appeal No. EDM 265 of 2003 before the Tribunal. M.A. No.42 of 2006, arises out of EDM 269 of 2003. M.A. No.48 of 2006 arises out of EDM 270 of 2003. M.A.No.51 of 2006 arises out of EDM 268 of 2003. The memorandums of appeal of these four appeals did not mention as to which appeal before the Tribunal, in its turn, had arisen out of which appeal before the learned Commissioner, nor any one of these mention the period with which the appeals are concerned. The matter was earlier heard at length on 15.4.2011, and was adjourned for today notwithstanding which the requisite particulars have not been provided to us. 4. A brief statement of facts essential for the disposal of the appeals may be indicated. The assessee is engaged in the manufacture of chewing tobacco, having its factory at Muzaffarpur. Learned counsel for the respondent submits that it has also its factories in New Delhi and Noida. The assessee deposited excise duty under the Act, and had in due course submitted returns for the periods in question. Show cause notices were issued as to why penalty in terms of section 11AC 4 of the Act be not imposed for the delay in terms of section 11A(1) of the Act, and why interest in terms of section 11AB be not imposed, for the delay in deposit of duty. By his aforesaid composite order dated 26.3.2002,the learned Commissioner accepted the cause shown by the assessee for the four periods in question, apart from two other periods not before us, held that no penalty in terms of section 11AC, nor any interest in terms of section 11 AB, had to be imposed. Aggrieved by this order, the learned Commissioner of Central Excise, Patna, preferred appeal which has been rejected by a common order and impugned before us. 5. The following substantial questions of law have been formulated for our consideration: i) Whether an amount of differential duty to the tune of Rs.1898319/ upheld by the Hon‟ble CGAT and the charges extendable period for demanding duty was also upheld was legal and proper for the Hon‟ble CGAT not to impose mandatory penalty of Rs.1898390 on the assessee under provisions of section 11AC of Central Excise Act, 1944? (ii) Whether the Hon‟ble CGAT order for recovery of interest under Section 11AB of the Central Excise Act, 1944 was proper and legal whereas charge of suppression of information was upheld by Hon‟ble CGAT? 5 6. We have perused the materials on record and considered the submissions of the learned counsel for the parties. The learned Commissioner as well as learned Tribunal have concurrently found that no part of the duty payable by the assessee was deposited late. In fact, it has instead been found by the Tribunal as well as the Commissioner that the duty demanded had been deposited prior to determination of the duty. Both have also found that when there was no delay in deposit of duty of excise, there cannot be the question of imposition of penalty or interest. In our view, these simple issues are concluded by concurrent findings of fact. No material has been brought on record to persuade us to take a different view. 7. The appeals have been preferred under the provisions of section 35G of the Act, the relevant portion of which is reproduced herein below: “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 6 of law”. (Emphasis is added) It is evident on a plain reading of section 35G of the Act that an appeal shall lie to the High Court if it involves a substantial question of law. Identical issue came up for our consideration in Misc. Appeal No. 657 of 2010 (Deputy Commissioner of Income Tax, Circle- 1, Patna Vs. Sulabh International Social Service Organisation), preferred by the Revenue in terms of Section 260-A of the Income-tax Act, 1961. This court examined the provisions of Section 260-A of the Income-tax Act, and Section 100 of the Code of Civil Procedure, which are in Pari Materia with each other wherein it has been held that an appeal to this court shall lie only if substantial question of law arises for consideration. Adequacy of materials, or possibility of another view on facts, is no ground for the High Court to entertain a second appeal under section 100 C.P.C. High Court can on facts interfere only after it reaches the conclusion that, in view of the materials on record, no person duly instructed in law can reach that conclusion. In other words, it is not possible to reach 7 the conclusion as has been arrived at by the first appellate court. The meaning and content of the expression „substantial question of law‟ has been discussed in paragraph 9.1 of the judgment and is reproduced hereinbelow: “9.1 In Sir Chunilal v. Mehta & Sons Ltd. v. Century Spg. & Mft. Co. Ltd. (1962 Supp. (3) SCR 549: AIR 1962 SC 1314), the Supreme Court laid down the following tests to determine whether a substantial question of law is involved. The tests are: (1) whether directly or indirectly it affects substantial rights of the parties, or (2) the question is of general public importance, or (3) whether it is an open question in the sense that the issue is not settled by pronouncement of this Court or Privy Council or by the Federal Court, or (4) the issue is not free from difficulty, and (5) it calls for a discussion for alternative view. There is no scope for interference by the High Court with a finding recorded when such finding could be treated to be a finding of fact”. 8. We are of the view that the provision of Section 35G of the Act to the extent relevant in the present context, is in Pari Materia with Section 260-A of the Income-tax Act, and Section 100 of the Code of Civil Procedure. We are also of the view that the present issue in the present appeals are concluded by concurrent findings of facts, and no issue at all either 8 KHAN on facts or law arises, let alone a substantial question of law. It is difficult to imagine more frivolous appeals, and more ill-prepared memorandum of appeals than the instant ones, and equally poor assistance at the Bar in support of the appeals. These are frivolous appeals burdening this court with most unwanted matters. 9. In the result, these appeals are dismissed. The substantial questions of law formulated by order dated 15.4.2011, are answered against the Revenue, and in favour of the assessee. There shall be no order as to costs. (S.K.Katriar,J) (S.P.Singh,J)