JUDGMENT
N.K. Sud, J.
1. The Revenue has filed this reference petition under Section 35H(1) of the Central Excise Act, 1944 (hereinafter called ‘the Act’) seeking a direction to the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi (hereinafter called ‘the Tribunal’) to refer the following question of law, arising out of its order dated 15-1-2001 [2001 (129) E.L.T. 86 (Tri. – Del.)], for the opinion of this court :-
“Whether the Hon’ble CEGAT is correct in accepting the plea of the Respondent No. 1 that shortage of resin was due to factors such as natural loss during processing and handling over a period of time whereas once the respondent No-1 have admitted the shortage of modvatable inputs at the time of recording of statement for the respondent No. 1 had deposited voluntarily duty involved on such shortage ?”
2. The respondent is engaged in the business of manufacture of PVC pipes and Sockets and waste scrap of plastics. On 30-3-1998, officers of the Central Excise Department visited the factory premises of the respondent and detected a shortage of 31500 Kilograms of PVC resin of the value of Rs. 8,75,700/- involving Central Excise Duty amounting to Rs. 2,18,925/-, A demand for the aforesaid amount was, therefore, created as payable by the respondent. A show cause notice for imposition of penalty under Rules 571(4), 173Q and 226 of the Central Excise Rules, 1944 read with Section 11AC of the Act was also issued. The Commissioner, Central Excise, Delhi-Ill vide order dated 11-5-2000 confirmed the demand of Excise Duty and also imposed penalty equivalent to the amount of duty demanded.
3. Aggrieved by the order, the respondent filed an appeal before the Tribunal which deleted the demand for Excise Duty as well as the penalty vide its order dated 15-1-2001.
4. We have heard Mr. Rajesh Cumber, appearing on behalf of the petitioner. According to him, the Tribunal was not justified in deleting the demand in view of the fact that the respondent had admitted the shortage of modvatable inputs.
5. We are unable to accept this contention. At the outset, we are of the view that the question proposed by the Revenue does not arise out of the order of the Tribunal. The conclusion of Tribunal is sought to be challenged on the ground that the respondent had “admitted the shortage” in his statement and had paid the duty on such shortage. A perusal of the order of the Tribunal shows that no such contention was raised on behalf of the department. An issue which had neither been raised before the Tribunal nor had been considered by it, cannot possibly arise out of the order of the Tribunal.
6. Even otherwise, the Tribunal has deleted the addition by observing that “the appellants have explained satisfactorily that the shortage of resin was due to factors such as natural loss during processing and handling over a period of time”. This finding is clearly one of fact and does not give rise to any question of law. No arguments have been advanced to show that this finding is either based on no material or is otherwise perverse in any manner. We are, therefore, of the considered view that no referable question of law arises out of the order of the Tribunal.
Resultantly, the petition is dismissed in limine.