Commissioner vs M/S Malerkotla Steels And Alloys … on 28 July, 2009

CEA 45 of 2009(O&M)                  1

           IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                        CHANDIGARH.

                         CEA No. 45 of 2009(O&M)
                         Date of decision 28 .7.2009


Commissioner, Central Excise Commissionerate, Ludhiana        ... Appellant

                         Versus

M/s Malerkotla Steels and Alloys Pvt. Ltd. Barnala and another    ...
                                                             Respondents.

CORAM:       HON'BLE MR. JUSTICE M.M. KUMAR
             HON'BLE MR. JUSTICE JASWANT SINGH

Present:     Mr.Gurpreet Singh ,Advocate for the appellant

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.

This appeal filed under Section 35 G of the Central Excise Act,

1944 (for brevity ‘the Act’) is directed against order dated 29.5.2008 passed

by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for

brevity ‘the Tribunal’). The Tribunal has recorded a categorical finding that

the dealer- respondent had produced a copy of invoice showing truck

number and also produced G/R issued by the transport company showing

the same truck number. Octroi receipts were also produced which bear the

same truck number. Even weighment slips were also of the same truck

number. On the basis of the aforesaid material the Tribunal has taken the

view that the dealer- respondent cannot be considered to have not received

the inputs from the registered dealers under the cover of invoice showing

payment of duty. On that basis the Tribunal held that credit could not be

denied to the dealer- respondent on the ground that registered dealer had not

received the material. Accordingly it has been held by the Tribunal that the
CEA 45 of 2009(O&M) 2

credit is available to the respondent.

Having heard learned counsel at a considerable length we find

that the findings recorded by the Tribunal does not suffer from any legal

infirmity warranting interference of this Court. Once the Tribunal has taken

the particular view on the basis of evidence then any other view, even if

possible, cannot be preferred. The High Court under Section 35 G of the Act

does not sit as a court of appeal to re-appreciate the evidence and record a

new finding of fact. There is thus no merit in the appeal which may warrant

admission of the appeal as no question of law much less a substantive

question of law would arise for determination. The appeal is wholly mis-

conceived and the same is accordingly dismissed.

                                             (M.M.Kumar)
                                               Judge



                                             (Jaswant Singh)
28.7.2009                                       Judge

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