ORDER
A.C.C. Unni, Member (J)
1. The present Reference Application has been filed by the Commissioner of Central Excise, New Delhi against the Tribunal’s Final Order No. A/112- 115/99-NB(DB), dated 8-2-1999 1999 (111) E.L.T. 536 (T) holding that the Department has not been able to prove its case beyond reasonable doubt, even on the basis of propandence (sic) of probability the allegation of clearance of goods without payment of duty.
2. Under Annexure B to the Reference Application, the following points have been raised and prayer has been made at the end of the Grounds that the Tribunal may refer the case to the Hon’ble High Court for deciding the matter on the following questions of law arising in the case.
“1. When the C. Ex. duty demanded in this case pertained to the false entries made in the name of M/s. PPAI which was established on the basis of evidences on records and statements of concerned persons, whether there was any need to make enquiry by the Department from other five job workers.
2. When the factory of M/s. PPAI was found not in operation and only two moulding machines were found in rusted and non-working condition and the owner of premises also made a statement that units normally remains closed and electricity connection has been restored recently and this fact was also established with the verification of electricity bills, whether there was still any need of detailed questioning whether the factory was not working during the entire period.
3. When the case is based on the evidences on records and statements of the concerned persons which prove the removal of finished goods in the market in the guise of semi-finished goods, whether burden to prove the case lies with the department or with the party to prove that no such activity has taken place.”
3. We have heard Shri Mewa Singh, ld. SDR for the applicant and Shri J.S. Agarwal, Advocate for the respondents.
4. Ld. SDR has contended that there was enough evidence by way of statements given by the Managing Director of the assessee as well as various employees of the assessee to show that the assessee was removing the finished goods without payment of excise duty in the guise of semi-finished goods by issue of challans under Rule 57F(3). Inasmuch as the Tribunal in the impugned order had not appreciated the said conducive nature of the material relied upon by the Department, certain points of law as enumerated in Annexure B of the Reference Application had arisen and they may be referred to the Hon’ble High Court New Delhi.
5. Shri J.S. Agarwal, ld. Advocate for the respondents submitted that the allegation against the respondents was that they were sending semifinished steering wheels to one of their job workers M/s. PPAI, for finishing after carrying out certain tests before the goods became marketable. The two processes namely reaming process and run out testing process were carried out by the job workers since the respondents, namely, M/s. Premium Mouldings and Processing Ltd. did not have the facility for the said two tests. The Department’s case was that the goods which were being sent to the job worker were actually finished products and not semi-finished goods. The material relied upon by the Department was examined in detail in Para 4 of the Final Order passed by the Tribunal. The said order was passed on the basis of appreciation of evidence. No question of law had arisen from the said finding of the Tribunal and therefore the Reference Application may be rejected, submitted the ld. Counsel.
5. We have considered the submissions of both the sides. We observe from Para 4 of the Final Order under consideration that the statements relied upon by the Department were examined and gone into in the Final Order. The Tribunal had observed that the assessees had been sending their goods to workers other than PPAI also under Rule 57F (3) Challans for carrying out the same processes. The Department had not been able to show whether those job workers were also carrying out or not carrying out the said operations. Further the statements given by Shri D.S. Gullani and the Supervisor of the Respondent firm regarding the facilities available for carrying out the said operations were not found to be categorical. The Tribunal had therefore, observed that the adjudicating authority instead of placing the onus to prove their case on the Department had cast the burden on the assessee to prove the reverse. It was on the basis of the above analysis that the Final Order was passed. In other words, the entire Final Order was passed on the basis of appreciation of evidence. No question of law was considered by the Tribunal nor can any question of law be said to have arisen from the said Final Order.
6. In the above view of the matter, we find that the Reference Application is without merit. It is accordingly dismissed.
