I- ^.-'.'. ?,^'^^'t1^^"—.:^ ..^-•.j . [^.^:^-'L.'li^^' !t>tL/±"^--.-..^. i'S'Bffi'&li. l<ef<€®SS ^,£^^*3m3 »a 10 ^'^ v-rsi^a j^s: SSSBS.:-?)^ ffi^ii'SSSS.JI 'u \v IN THE H1GH COURT OF CHHATTISGARH. BILASPUR fCG.l , "'K APPELLANT Tax Case N0. b OF 2008 UNION OF INDIA THROUGH COMMISSIONER, CENTRAL EXCISE & CUSTOMS CENTRAL EXCISE BHAWAN, DHAMTARI ROAD, TIKARAPARA, RAIPUR VERSUS RESPONDENT M/S JINDAL STEEL & POWER LTD, P.B. - 16, KHARSIA ROAD, RAIGARH(C.G.) -^-E-E-»»^.* ^rrT_ HIOH a^JRTOF CHHA7TI8GARH AT.BII.ASPUR APPELLANT RESPONDENT TAX CASE No. 06 of2(108 Union ofladia. VE'RSUS M/'s. Jindai Steel & Power Ltd. (. APPFAI.IJNDRR 8RCTION35-GOFTHRCRNTRAT-RXCISRACT. 1944 BB: Hon'hle Shri Satish K. Agnihntri & Hon'ble Siiri Radlic Shyani SIiaxtaa, JJ. <-. Present: Shri Bhisma Kinger, Advocate tbrthe appeltant Shri Sanjay K. Agrawal wiih Slm Asihish Shriva Advocates for the respondeat ORDKRIORAI-l (Passed on 30tn day ofAugist, 2011) Per Satish K. Aenlhotri. J. 1. This iastant appeal is filed under section 35-G of fhe Central Excise Act 1944 ifor short 'the Act, 1944'). The appeal was admitted for hearing on the followme substartial qiiestions oflaw: "1(A) Whethar the method adopted for caleulating iatpugned quantity was oorrect and adnussiUe under tfae law? and; (B) Wbether the Tribunal was not jiistified in setting aside the cuiilisualion order only on llie grouad that the qiiantity was arrived on estunation basis? 2) Whether the Panchnanw prepared and signed by respondent regarding uiiETerenue of stouk and not demanding any re-varification of it amounte to adirussion ofits uontents?" 2. The brief facts, as projeoted by the appellact we &at the respondent is engaged in manirfactaire of vea and stecl productB faUing under chapter 72 ofthe C^ntral Excise TariffAct, 1985. A verification of stock of sponge iron was done on 28.06.2002 The appeilant ascertained shortages of 14Q.080, 4.776 aad 66.740 Mts. •-r'~ ia the physical stock of steel slab (aon alloy), Steel roimifc (non alloy) and Steel Roimds (alloys), respectively, ia conyarison with the stock mentioned in tfaeir daily stock acoount. A show cause notice was issued on 18.06.2003 (Aimexure A/2). Reply to Ihe saoie was filed by the respondent. The Assistant Conaaksiona-, Cerrtral Excise Division, Bilaspw, afier haviug considered all the facte, vide order dated 06.05,2005 (Annexure A/3), ordered recovery of Central Exeise Diity of Rs. 3,03,030/- undw section 11A ofthe Act, 1944 alonewith intCTWt iinder section 11AB ofthe Act 1944. Apenalty ofRs. 10,000/- wa.s also imposed onthe party under Rule 25 ofthe Ceatral Excise Rules, 2002. 3. Thereagamst, the respondent preferred an appeal befwe the Coinnaissioner, CeHiral Exdse & Customs (Appeals-I), Raipiir. The C-Qmmissioner (Appeals-I), by order dated 12.08.2005 (Annexiire A/4) set aside the order passed by the Assistant Commissioaer holdiag that the variafion in the stock of go<xfe was very nomma! i.e. 0.97% in case of steel slabs, 0.41% ia case of steel round (non alloy) and 2.81% of steel alloy. The Coaamissioner (^ipeals) relying on a decision of Scmgmermer IndiaPvt. Ltd. v. CCE wlierem it was held fcat shortages less than 5% being miaor shortage were required to be igncred. Thus, the Comnussioner (Appeals) was of the opinioa thflt the variation ia the stoek being nomitMl was to be ienored and the (hity cannot be demanded fram the appellant. The Comnussioner (Appeals) further held tfaat the stock of the eoods was actuaUy not weighed but (2003 (158) ELT 703 (Tn) ascertained by adopting measiiraaent method. Accwdingly, the order dated 06.05,2005 (Annexiire A/3\ was set aside and the appeal filed by fhe respondent was allowed. Further, an appeal -was preferred by fce appeilant before the Customss, Excise & Service Tax Appellate Tribimal (for short 'the Tribunal') , New Delhi in Excise Appeal No. The Tribunal, by order dated 23.08.2007 (Amwxure mme shortages adjusting fhe slabs and rounds whicfc the factory were only miaimal and such nominal ri^itly held to be pennissible. It was flu-ther of2005.SM. ' A/l), held that ich wa»foimd in vanation was observed bv the Tribimal that since tfae method adopted fw measuriag the qiiantity proceeded on the footiags that the stabs of identical description were having identical weight which was a^iinst the details shown in Ifae individual iavoices, as demoastrated fi-em the record, there was HO reason to mfer any sfaortage without the actiial wugiBnent ofthe goods. Thus, no infinnity was found ia the order passed by the C-ommissinier (Appeals) andthe Tribuaal, eoncumns findings recorded by the Commissioner (Ajyeals), dismissed appeal filed by the Revenue. fiBdiags, it. is well. 35.0 of the Act, In case, where there is no dispute willi reeard settled proposition of law in tenns of sectioa 1944, that the High Court can entertain an appeal only ifa questioa oflaw arises. 6. Tbe Supreme Court ia MetroarkLtd. v. Cemmissioner ofCentral Excise, Cakutta', held as under: "8. Even otherwise, the law on the subject. is clear. Tlie Tribunal is the fiual fat-findiai authority. Uriess it is shown that there is samething perverse iii ils linding, fliis Courl would not interfer®.No authority is required for this puqaose. But as a iarge number of authorities are cited, we refer to fhem: Pragati Computers (P) Ltd. v. Collector ofCustoms, Rehance Silteon ff) (P) Ltd. v. CCE9, Asicm Paints India Ltd. v. CCE and Cffllector cf Custams v. Sv/astic Woollens (P) Ltd.s,, 7. In Chandana Impex Private Limited v. Commissiwier ofCu.stoms, ...7 NewDelhi', tte Supreme Court, held as uadsr: "13. As stated above, the Stppetlaat had framcd in iheir appeal be&re thts High Courl, as many a.s seven questioas as substantial (ft»esti<xis of law. It is maiiifesl fi-om a bare reading of Ihc six questions viz. (b) to (g), repeated in this appeai, that aone bfthe questions can be said to be a siibstantial questiwt of law, in asmuch as Uiey do not proueed ou the premise ihat the deoision of tfae Tribimal on the issues raised tiierem is perverse, in the sense &at the fhidings offact, arrived at by tiie Tribunal are not based on the material plwed befofe it w £hatthe relevanl malerial has been ignored by it It is trite law that a fmdiae offact mav eivs rise to a subslaiitial queslioa oflaw, inler alia, ia the event the finding are based'on ao evideace and/'w wliile aTriviiig at tiie saiu finding, relevant adnussibfe evidence ha.s not been taken mlo uonsidenition or inaAnissible evidence has been taken iato comideratiDn or iegal priaciples have not been applied in appreciating fhe evidenee, or when fhe evidence hw been misread. (&ef.:W.B. EUsclricity Regukitory Commisswn v. CESC Ltd ., Afetroark Ltd. v. CCE9, Comnr. of 2 (2004)12 SCC 505 '(2000)10SeC150 4 (1897) 1SCC 218 S(19S8)2SCC470 e(1998)SuppSCC796 1(201-0 7 SCC 289 8 SCC 715 G Amit Customs v. Vijay Narendra Gopal 10 ijf\" v. Bajat 8. We have pen»sedthe ordere passed by tfae authorities below as well SB by the Tribimal. We have t»tfound any mfumity w perveraity in the recording of any findings of fact. Thtis, in view of ttie foregoing, no sutetanfial question of law arises whea adnaittedly, there is no perversity or infmiuty in Ihe findia^ offacts. 9. Thits, the appeal is dismissed on the ground tfiat it does not raise any substaHtial question oflaw for decision in the ftcts ofthe case bytIiisCourt, Sd/- Satish K. Agnihotri Judge Sd'- Radhe Shyam Sharma ".(2004)12300505 "'(2007) 4SCC 118 (2009) 3 SCC 287