IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.E.A. No. 40 of 2009
DATE OF DECISION: February 25, 2009
Commissioner of Central Excise Commissionerate, Ludhiana
...Appellant
Versus
M/s Fas Kusum Ispat (P) Ltd. and another
...Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE H.S. BHALLA
Present: Mr. Heman Aggarwal, Advocate,
for the appellant.
1. Whether Reporters of local papers 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?
M.M. KUMAR, J.
The revenue has approached this Court by filing the
instant appeal under Section 35-G of the Central Excise Act, 1944
(for brevity, ‘the Act’) by challenging order dated 27.2.2008, passed
by the Custom, Excise and Service Tax Appellate Tribunal, Principal
Bench, New Delhi (for brevity, ‘the Tribunal’).
2. The basic requirement for attracting the provisions of
Section 11AC of the Act is that there has to be intention to evade the
payment of Excise duty. In the present case, a categorical finding has
been recorded by the Tribunal that such an intention cannot be
C.E.A. No. 40 of 2009 2
presumed because the shortage which was detected during stock
verification stood explained. As per the statement of the Director, the
day-to-day affairs of the company were not being looked after by him
and, therefore, he was not able to explain the shortage. The Tribunal
has further recorded a finding that there is no material to support the
clandestine removal of inputs. Once the aforementioned findings of
fact are there then it is not possible to apply the provisions of Section
11AC of the Act so as to impose penalty.
3. Mr. Hemen Aggarwal, learned counsel for the appellant
has, however, pointed out that the judgment on which reliance has
been placed by the Tribunal in the case of CCE v. S.K. Sacks Pvt.
Ltd. (CEA No. 154 of 2006, decided on 22.1.2008) and the
judgment in the case of CCE v. Machino Montel (P) Ltd., 2004 (62)
RLT 709 rendered by this Court have been overruled. In the
aforesaid judgments the question which has been decided was
whether deposit of duty before issuance of show cause notice would
blunt the finding that there was intention to evade the duty. However,
in the present case, the Tribunal has given categorical finding that
there was no clandestine removal of inputs and the shortage could not
be explained by the Director for the reason that he was not dealing
with the affairs of the company on day-to-day basis. Therefore, the
judgments in the aforesaid cases would not affect the merit of the
controversy once the substantive findings are against the appellant.
No question of law warranting admission of the appeal would arise.
Accordingly, the appeal fails and the same is dismissed.
C.E.A. No. 40 of 2009 3
4. For the reason that the appeal itself has been dismissed
on merit, we do not feel any necessity to pass any order on the
application filed under Section 149 C.P.C. for making good the
deficiency of Court fee as well as application under Section 5 of the
Limitation Act for condonation of delay of 127 days in filing of the
appeal.
(M.M. KUMAR)
JUDGE
(H.S. BHALLA)
February 25, 2009 JUDGE
Pkapoor