IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.E.Appeal No.85 of 2007 Date of decision: 22.10.2008 M/s Rado Rexine company -----Appellant Vs. Customs, Excise & Service Tax Appellate Tribunal and others -----Respondents CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE L.N.MITTAL Present: Mr. Amit Jain, Advocate for the appellant. Adarsh Kumar Goel, J 1. This appeal has been preferred by the assessee under Section 35-G of the Central Excise Act, 1944 ( in short, ‘the Act’) for setting aside orders passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi dated 22.3.2005, Annexure A-12 and 11.8.2006, Annexure A-15. 2. On 25.7.2000, the representatives of the Excise department intercepted a tempo containing coated textile fabrics C.E.Appeal No.85 of 2007 without covering documents. The driver made a statement that he was employee of the appellant and the goods were loaded by the appellant-firm for delivery to its sister concern. Thereafter, stock register, invoice book and other record were examined and no entry was found in respect of intercepted goods. The plea of the petitioner was that the goods were removed for the purpose of embossing of railway monogram, which was to be done at the factory of the sister concern of the assessee. The goods were seized after forming an opinion that the same were being clandestinely removed. After giving Show Cause Notice and considering the explanation of the assessee, the adjudicating authority levied duty and penalty. The goods were confiscated with option to redeem and so was the tempo. 3. On appeal, the appellate authority affirmed the finding and rejected the plea that the goods were being sent for job work of embossing railway monogram or that the factory of the assessee was closed. Plea of the assessee that the goods were not marketable was also rejected. It was observed that there was no covering documents to cover the movement of goods. However, the appellate authority reduced the redemption fine and penalty. The Tribunal affirmed the order of the appellate authority. The 2 C.E.Appeal No.85 of 2007 appellant had earlier filed an appeal in this Court but after some hearing, the appeal was allowed to be withdrawn with liberty to move an application for rectification. Rectification application has been dismissed by the Tribunal. 4. We have heard learned counsel for the appellant. 5. In para 16 of the appeal, the assessee has proposed following substantial questions of law:- “i) Whether marketability of a product is condition precedent in imposition of excise duty? ii) Whether in the absence of evidence led by the department, the authorities under the Act were Tribunal should decide on the basis of supposition? iii) Whether the order of the Tribunal without touching various grounds taken in the appeal and pressed before it is non-speaking and illegal being violative of principles of natural justice? iv) Whether the department who has not admittedly sent the samples withdrawn from the goods for laboratory test has failed to discharge the onus on them to lead evidence about marketability of the product? 3 C.E.Appeal No.85 of 2007 v) Whether the impugned orders passed by the authorities/respondents are illegal?” 6. We are not satisfied that any substantial question of law arises. The finding recorded by the adjudicating authority, as affirmed by the appellant authority, is a pure finding of fact based on appreciation of evidence. Admittedly, the tempo in which goods were being carried, did not have any document showing that the goods had been sent for job work, as alleged nor there was any entry in the stock register. In these circumstances, after giving opportunity to the appellant, the statutory authority had arrived at a decision, which cannot be held to be perverse or open to interference merely because two views may be possible. 7. There is no dispute about the legal proposition that the product must be marketable before excise duty is attracted and burden of proving the leviability of duty is on the department. It cannot, however, be said that in the present case, the product was not leviable or that the department had not discharged the burden of leviability. The said burden can be held to have been discharged from attendant circumstances and inferences from 4 C.E.Appeal No.85 of 2007 facts on record. In absence of finding being shown to be perverse, no substantial question arises. 8. Dismissed. (Adarsh Kumar Goel) Judge October 22, 2008 (L.N.Mittal) ‘gs’ Judge 5