CEA No. 68 of 2009(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CEA No.68 of 2009(O&M) Date of decision 17 .8.2009 Commissioner of Central Excise Appellant Versus M/s Ashwani Nut Bolts Industries ... Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. Kamal Sehgal, Sr. Standing Counsel for Indirect Taxes. 1. Whether Reporters of local papers may be allowed to see the judgement ? 2. To be referred to the Reporter or not ? 3. Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. The revenue has approached this Court by filing the instant appeal under Section 35G of the Central Excise Act, 1944 against order dated 24.7.2008 passed by the Customs, Excise and Services Tax Appellate Tribunal, New Delhi (for brevity 'the Tribunal'). In its short order, the Tribunal has held that the goods were described in the invoices issued by the supplier as bar and rods. It has been found as a fact that the supplier is manufacturer of alloy steel products and the goods received from the supplier by the dealer respondents were of non alloy steel. The Tribunal noticed wrong description of the goods in the invoices which was found to be only a mistake. It also recorded a finding that no show cause notice was issued to the manufacturer asking him to show cause against the wrong description of the goods in the invoice. The Tribunal also found that non alloy steel received by the dealer respondent was duty paid which would CEA No. 68 of 2009(O&M) 2 qualify for credit on the basis of duty paid documents. We have heard Mr. Kamal Sehgal, learned counsel for the revenue who has asserted that the following substantive questions of law would arise for determination of this Court: “1. Whether the Hon'ble CESTAT is justified in rejecting the appeal of the Department on false grounds that no Show Cause Notice has been issued to the manufacturer- supplier of the goods, when actually it was issued; 2)Whether the Modvat credit is admissible on invoices issued by a manufacture by mis-declaring the description of the goods intentionally to skip the assessment of goods i.e. “Non Alloy Steel” under the 'Capacity Based Assessment Scheme” in the garb of products of “Alloy Steel”? Having heard the learned counsel we find that the first question whether show cause notice was issued to the supplier- respondent is a pure question of fact. It cannot be regarded as a question of law much less a substantive question of law. Accordingly the remedy of revenue would be to approach the Tribunal for rectification by moving appropriate application. The second question whether the goods were mis-declared again would be a question of fact. The Tribunal has recorded the finding that there was no dispute that the goods received by the dealer respondent from its supplier were of 'Non Alloy Steel”. Again the remedy would be before the Tribunal. Therefore, we find that no question of law much less a substantive question of law warranting admission of the appeal would arise. The instant appeal is wholly without merit and does not warrant admission. Accordingly, the appeal fails and the same is dismissed. CEA No. 68 of 2009(O&M) 3 However, the appellant may approach the Tribunal, if so advised by moving appropriate application. (M.M.Kumar) Judge (Jaswant Singh) 17.8.2009 Judge okg