IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.E.A. No. 41 of 2009 Date of Decision: July 13, 2009 Commissioner of Central Excise, Gurgaon …Appellant Versus M/s Reliant Packing Films Ltd. …Respondent CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. Kamal Sehgal, Advocate, for the appellant. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. This is an appeal filed by the revenue under Section 35-G of the Central Excise Act, 1944, challenging order dated 8.5.2008 passed by the Customs, Excise and Services Tax Appellate Tribunal, New Delhi (for brevity, ‘the Tribunal’) holding that the dealer-respondent could not be saddled with penalty under Section 11AC of the Act because there was no material substantiating clandestine removal of the goods. On that premise the Tribunal has deleted the penalty. Having heard learned counsel we are of the considered view CEA No. 41 of 2009 that the question of clandestine removal of raw material or goods is a question of fact and an appeal under Section 35-G of the Act could not be entertained only on a substantive question of law. The reliance of the appellant on the statement made by the executive of the dealer recorded under Section 14 of the Act on 23.9.2003 and his further statement recorded on 13.3.2004 resiling from the earlier one, would not advance the case of the revenue because both the statements are contradictory. It would be highly improper to record a finding by re-appreciating the aforesaid statements and reach a conclusion other than the one recorded by the Tribunal. We have repeatedly asked the learned counsel for the revenue to show us any material which may throw some light with regard to clandestine removal of the raw material. However, except the aforesaid two statements nothing has been placed on record although adjournments were given on 6.5.2009 and 6.7.2009. Accordingly, we do not find any merit in the appeal and the same is dismissed. (M.M. KUMAR) JUDGE (JASWANT SINGH) July 13, 2009 JUDGE Pkapoor 2