IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.E.A. No.63 of 2008 Date of decision: 27.8.2008 Commissioner of Central Excise, Ludhiana. -----Appellant. Vs. M/s Tee Sons Knitwears, Ludhiana and others. -----Respondents CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE AJAY TEWARI Present: Ms. Geeta Singhwal, Advocate for the appellant. ----- ORDER: The revenue is aggrieved by order dated 8.8.2007 passed by Customs Excise and Service Tax Appellate Tribunal, New Delhi in Excise Appeal No.2871 of 2005-SM(BR), dismissing the appeal of the revenue on the issue of entitlement to deemed MODVAT credit. The assessee is manufacturer of knitted garments and gave declaration on 2.5.2003 under Rule 9A of the Cenvat Credit Rules, 2002, declaring the goods lying in stock as on 1.4.2003. Show cause notice dated 28.6.2004 was issued by the adjudicating authority for recovery of central excise duty in respect of 200200 pieces of readymade garments, which had not been entered in the record. The demand of duty was confirmed and penalty was imposed. CEA. No.63 of 2008 On appeal, the assessee pointed out that in the declaration, goods lying in the shop were also included. A photocopy of bank statement in support of this plea was also produced. The appellate authority after recording its satisfaction on the factual aspect of the plea of the assessee, allowed the appeal, which order has been affirmed by the Tribunal. Appeal before this Court under Section 35-F of the Central Excise Act, 1944 (for short, “the Act”) is maintainable only on substantial questions of law. In para 2 of the appeal, following substantial questions of law have been proposed:- “(i) Whether the Ld. Tribunal has wrongly and erroneously allowed the benefit to the respondent firm on the basis of additional evidence in the form of Bank Statements which was not produced during the course of adjudicating proceedings? (ii) Whether the additional evidence at the stage of appeal is not admissible as held by Hon’ble Tribunal in case of Sri Rangar Indus Vs. Commissioner 1994 (72) ELT 638 (T) which was upheld by the Hon’ble Supreme Court 1997(95) ELT A 227 (SC)? (iii) Whether the order of the Ld. Tribunal is per se illegal and the findings recorded therein are perverse and unsustainable? 2 CEA. No.63 of 2008 (iv) Whether the Ld. Tribunal has failed to appreciate the ration of its own judgments on the subject in other cases? (v) Such other questions as the Hon’ble High Court may consider relevant and appropriate in the facts and circumstances of the case?” Only argument pressed at the time of hearing is in relation to proposed question of law (ii). It is submitted that additional evidence was not permissible at the appellate stage. Reliance is placed on judgment of the Hon’ble Supreme Court in Sri Rangar Indus v. Commissioner 1997(95) ELT 638 (T). The order of the Hon’ble Supreme Court is to the following effect:- “We have heard learned counsel for the parties. We see no ground to interfere with the concurrent findings reached by the Courts below. The appeal is dismissed. We, however, grant six months time to the appellant to deposit the central excise duty which has become due as a result of the dismissal of this appeal.” The Hon’ble Supreme Court has only observed that there was no ground to interfere with the concurrent findings. No further law has been laid down thereafter. Section 35-A of the Act provides for procedure of hearing the appeal. The said provision provides for permitting new grounds to 3 CEA. No.63 of 2008 be raised as also for further inquiry being made, as may be considered necessary, in a given fact situation. In the present case, on facts, the appellate authority has accepted the explanation of the assessee that there were no uncounted goods in the factory and that there was no evasion of duty. There is nothing to hold the said finding to be perverse. In view of above, the substantial questions of law proposed to be raised, do not arise. The appeal is dismissed. ( ADARSH KUMAR GOEL ) JUDGE August 27, 2008 ( AJAY TEWARI ) ashwani JUDGE 4