CEA No.30 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CEA No.30 of 2008 DATE OF DECISION: March 11, 2010 COMMISSIONER OF CENTRAL EXCISE, GURGAON ...APPELLANT VERSUS M/S REMSONS INDUSTRIES LTD., ...RESPONDENT DISTT. GURGAON CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. PRESENT: MR. KAMAL SEHGAL, SR.STANDING COUNSEL FOR THE APPELLANT. MR. SURJEET BHADU, ADVOCATE FOR THE RESPONDENT. ASHUTOSH MOHUNTA, J.(ORAL) The Revenue has impugned the order (Annexure A-5) dated 31.5.2007, passed by the Customs, Excise & Service Tax Tribunal (for short 'the Tribunal') vide which it was held that as there was no clandestine removal of the goods by the respondent, hence, the respondent was not liable to pay penalty under Section 11AC of the Central Excise Act (for short 'the Act'). The short question that arises for consideration in the present appeal is as under:- “Whether there was any clandestine removal of cenvattable inputs by the manufacturer and if so, whether they are liable to pay penalty under Section 11AC of the Central Excise Act?” A perusal of the facts in the present case shows that the adjudicating authority vide its order Annexure A-1 held that there was clandestine removal of the cenvattable inputs and accordingly, impose a penalty of Rs.70,048/-. An appeal was filed by the manufacturer which was CEA No.30 of 2008 -2- dismissed by the Commissioner (Appeals) vide order Annexure A-2. The aforementioned orders were challenged by the respondent before the Tribunal which held that there was no material to show that there was any clandestine removal and hence set aside the demand of penalty. This order was challenged by the Department before the High Court, which remanded the matter back to the Tribunal for a fresh decision. The Tribunal vide the impugned order Annexure A-5 has again reiterated that there was no material supporting a view that the purported shortage found quantity had been removed out of the factory clandestinely by the respondent. A perusal of the aforementioned facts clearly shows that a categorical finding has been returned by the Tribunal that there was no clandestine removal of the cenvattable inputs. The manufactured goods had not been removed out of the factory premises and hence it cannot be said that any material or stock of the finished product had been removed out of the factory premises clandestinely. Since there is no clandestine removal, therefore, the case of the respondent is fully covered by the judgement of this Court in Commissioner of Central Excise, Ludhaina vs. Fas Kusm Ispat (P) Ltd., reported as 2009 (240) ELT 13 (P&H), wherein it has been held that once substantive findings are against the Revenue, then the question of imposition of any penalty does not arise. In view of the above, we find no merit in this appeal and the same is dismissed. (ASHUTOSH MOHUNTA) JUDGE March 11, 2010 (MEHINDER SINGH SULLAR) Gulati JUDGE