^ HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench: Appeilant Reseondent Hon'ble Shri Dhirendra MishraL& Hors''ble Shri R.N. Chajidrakar, JJ TaxCaseNo. 148 of 2010 M/s Suni! Steels, Prop. Sunil Re- roliers & Steel Pvt. Ltd. (Through its Director Shri Anil Nachrani S/o Late MP Nachrani, Aged 36 years) 560, Urla Industrial Area, Raipur. -Versus- Commjssioner, Central Excise & Customs, NewCentral Revenue Building, Tikrapara, Raipur (CG) ^^ Present: Mr. BP Mishra with Mr. CR Sahu, counsel for the appeltant. Mr. Bhishma Kinger, counsel for the respondent. Per Dhirendra iVlishra, J ORAL ORDER (17 March, 2011) The appellant has preferred this appeal under Section 35G of the Central Excise Act, 1944 (for brevity the Acf) against the order dated 1s March, 2005 passed by the Customs, Excise, Service Tax Appeliate Tribunal, New Delhi (for short "the Tribunai") on the foliowing substantiai questionsof law: "1. Whether in view of the certillcate dated 28/8/98 (Annexure A-12) issued by Superintendent of Respondents department, the capacity determination is justified for the period 13/11/97 to 31st May, 1998? 2. Whether the inspection report (Annexure A-5) given by labour inspector regarding the dismantled status of mili be tgnored in determination of Production capacity for the period 1 3/11/97 to 31st May, 1998? 3. Whether the finding given by TribunaJ in present case holds good & justified in the ilght of case laws cited above? 4. Whether the impugned order passed by Tribunai without any observation regardsng the corresponder?ce between the appeilant & respondent is iegaiiy correct?" f^\ %:i(!i% I ^tel^'^ 2- 2. Briefly stated. facts of the case, as projected in the Memo of Appeal, are that the appellant is a manufacturer of Hot Rolled products of non-alioy stee! falling under Chapters 72 & 73 of the Central Excise Tariff Act, 1985 and is registered with the Central Excise Department. The appellant had two re-rolljng mills in the same premises bearing common registration. Miil No.1 was closed down on 13.11.1997 and intimation to this effect was given to the Commissioner, Centra! Excise. During the period of dispute, the appeiiant was working under the Compound Levy Scheme and their Annuai Production Capacity (ACP) was determined by the competent authority. The plea raised by the appeitant before the competent authority was that they had two re- rolling mills, but one of those was dosed on 13.1 1.1997 and iater on, it was dismantted and as such, their ACP was required to be determined in respect of oniy one mill w.e.f. December, 1997. This ptea of the appellant was ordered to be considered by the Tribunal in the first round of appeal, after setling aside the order of the Commissioner. However, the Commissioner (Appeais) re-determined the ACP and confirmed the duty demand and the appeal preferred by the appeiSant has been agajn dismissed by the impugned order. 3. Learned counsel for the appellant submits that white confirming the order of the Commissioner, the Tribunai has failed to consider that the appellant vide their letter dated 13.11.1997 had intimated that Mili No.1 has stopped production and the Range Superintendent certified that the mSII was dosed from 13.11.1997 to 28.8.1998. Theinspector, Headquarters (Preventive). visited the factory on 12.12.1997 to verify the parameters and found that the re-roliing mi!i was under construction and thus, factum of ciosure of the mili was weil within the knowledge of the respondent authorities. However, the Tribunal, without adverting to the correspondences between the parties, has dismissed the appeal by the impugned order, which is iegally not sustainable. 4. On the other hand, Mr. Bhishma Kinger, learned counsel for the respondent, would argue that the Tribunal, after considering the evidence available on record, has categoricaliy heid that in the absence of any tangjble evidence to show that one mill was dismantled by the appellant under intimation to the department, contention of the appellant cannot be accepted that ACP was required to be fixed in respect of only one mitl as the other miij was closed from 13.11 .1997. The certificate dated 28.8.1998 oniy pertains to dosure of one mili of the appeitant from 13.11 .1997 and the same was given by the Range Superintendent in response to the appetlants letter dated y';. v "';'"'< JJ •^s.-'^ ^ 12.5.1998, by which they intimated about the dosure of their mill from 13.11.1997. In any case, the question - whether Mill No.1 of the appellant remained closed from 13.11.1997 - is a question of fact and all the forums below have recorded a concurrent finding that the appellant has faifed to prove the above fact by furnishing tangible evidence, and the Tribunal is the final Court on fact. No question of law, much less any substantial question of law, arises from the impugned order of the Tribunal, for adjudication. 5. We have heard learned counsel for the parties, perused the record as aiso the impugned order. 6. The controversy jnvolved in this appeal is - whether Miil No.1 of the appellant was closed from 13.1 1.1997 to 317^.1998? 7. The Tribunal has confirmed the order of the Commissioner (Appeais) and he!d that the appeilant has not placed any tangible evidence to show that one of their mills was dismantied by the appeilant under intimation to the department. The above finding has been arrived at after considering the arguments advanced on belialf of the appeiiant. Thus, consjdering that the forums beiow on the basis of materiai availabie on record have decided the question of fact against the appellant herein, We are of the opinion that no substantial question of law, as proposed by the appellant, arises for adjudication of this appeal. Accordingiy, the appeal being without any substance js hereby dismissed. Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge