CEA No. 71 of 2008 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CEA No. 71 of 2008 Date of decision : August 28, 2008 Commissioner of Central Excise Commissionerate, Chandigarh ...... Appellant. through Mr Sanjeev Kaushik, Advocate v. M/S Avdesh Tracts (P) Ltd. ...... Respondent CORAM : HON'BLE MR.JUSTICE ADARSH KUMAR GOEL HON'BLE MR.JUSTICE AJAY TEWARI *** 1. Whether Reporters of Local Newspapers 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 ? *** AJAY TEWARI, J This appeal has been filed by the revenue proposing the following question of law :- “Whether proviso to Section11A of the Central Excise Act, 1944 is applicable when the party has consciously concealed the material facts of having two re-rolling mills and two re-hearing furnace from the department with an intention to get the ACP fixed on the lower side of their and subsequent evasion of payment of Central Excise Duty; when the party was required to declare both the re-rolling mills and re-heating furnaces as required under Ministry's F.No.345/40/97- TRU dated 27.02.1998.” The assessee is engaged in the manufacture of M.S bars/rods, CEA No. 71 of 2008 ::2:: twisted bars/tor, steel/rounds and angles, shapes and sections of iron or non allow steel and opted to avail the compounded leavy scheme under which its annual capacity of production (ACP) was determined as 7287.969 metric tonnes per annum in the year 1997. After more than five years, a notice was issued to the assessee to show cause as to why the ACP should not be fixed as 9876.356 metric tonnes by taking into consideration the fact that they had two re-rolling mills and why the differential duty should not be recovered from them along with interest and penalty. Subsequently, the Assessing Authority (the Commissioner) held that the assessee had concealed material facts and upheld the demand for differential duty, interest and penalty. The appeal filed by the assessee was allowed both on merits and on the ground of limitation by holding that the assessee had declared all material particulars and had concealed nothing and further that infact, the ACP had been fixed originally after completing verification. As noticed above, the Revenue has not even challenged the finding of the Tribunal on the basis of limitation. As regards merits, we find that the finding returned is a question of fact and the said finding cannot be termed to be perverse. Consequently, we decide the question posed in favour of the assessee and dismiss the appeal with no order as to costs. ( AJAY TEWARI ) JUDGE ( ADARSH KUMAR GOEL ) JUDGE August 28, 2008 'kk'