{"id":103493,"date":"2010-02-16T00:00:00","date_gmt":"2010-02-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-simplex-castings-limited-vs-union-of-india-others-on-16-february-2010"},"modified":"2019-01-10T13:23:43","modified_gmt":"2019-01-10T07:53:43","slug":"ms-simplex-castings-limited-vs-union-of-india-others-on-16-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-simplex-castings-limited-vs-union-of-india-others-on-16-february-2010","title":{"rendered":"Ms Simplex Castings Limited vs Union Of India & Others on 16 February, 2010"},"content":{"rendered":"
Chattisgarh High Court<\/div>\n
Ms Simplex Castings Limited vs Union Of India & Others on 16 February, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  HIGH COURT OF CHATTISGARH  BILASPUR         \n\n Tax Case No 43 of 2007 \n\n Ms Simplex Castings Limited \n                                        ...Petitioners\n\n                          Versus\n\n Union of India & Others\n                                         ...Respondents\n\n! Ms Ritu Mishra counsel for the petitioner\n\n^ Shri Bhishma Kinger standing counsel for the respondents\n\n CORAM: Honble Shri Satish K Agnihotri & Honble  Shri Manindra Mohan Shrivastava J  \n\n Dated: 16\/02\/2010\n\n: Judgement \n\n                        ORDER ORAL\n\n         Passed on this 16th day of February 2010\n\n     Appeal under Section 35 G of the Central Excise Act 1944\n\nPer Satish K. Agnihotri, J.\n<\/pre>\n
1.   This appeal under section 35G of the Central Excise<\/p>\n
     Act, 1944 (for short `the Act, 1944′) arises from the<\/p>\n
     final order No.258-261\/                07-SM (BR) dated<\/p>\n
     27.12.2006 passed by the Customs, Excise & Service Tax <\/p>\n
     Appellate Tribunal, Principal Bench, New Delhi in Appeal<\/p>\n
     No.E\/513-516\/2005-SM.\n<\/p>\n
2.   The facts, in nutshell, are that the appellant-
\ncompany is engaged in the manufacture of excisable goods.
\nThe appellant-company was also availing Duty credit on the
\ninput used in or in relation to manufacture of the
\naforesaid finished goods in terms of Rule 57-A of the
\nCentral Excise Rules, 1944 (for short `the Rules, 1944″).
\nThe appellant availed irregular Duty credit of
\nRs.2,67,364\/-, Rs.71,024\/- and Rs.1,00,878\/- against
\ncertain invoices issued by M\/s.Jain Udyog, and M\/s.Tara Re-
\nRolling Mills, Tedesara. Three show-cause-notices being
\nC.No.V (72) 15-63\/Off\/98\/Adj\/21351-56 dated 9.9.1999
\ninvolving Modvat credit of Rs.2,67,364\/- availed during
\nthe period September, 1994 to August, 1995; C.No.V (Ch:\n<\/p>\n
72) 15-73\/ Off\/JC\/2000\/Adj\/5123 dated 7.3.2000 involving
\nModvat credit of Rs.71,024\/- availed during the period
\nMarch, 1995 to April, 1995; and C.No.V (MOD) 15-
\n03\/R\/RJN\/BHI\/2000\/Adj\/16470 dated 9.8.2000 involving
\nModvat credit of Rs.1,00,878\/- availed during the period
\nAugust, 1995 to October, 1995 were issued to the appellant
\nproposing disallowing and recovery of aforesaid Modvat
\nCredit from the appellant under Rule 57(I)(II) of the
\nRules, 1944 read with section 11-A of the Central Excise
\nAct, 1944 (for short `the Act, 1944′) by invoking the
\nextended period of five years. The show-cause-notice also
\nproposed penalty against the appellant under Rule 173 Q of
\nthe Rules, 1944 along with mandatory penalty equivalent to
\nthe amount disallowed under Rule 57I[4] of the Rules, 1944
\nread with section 11AC of the Act, 1944. The appellant
\nfiled detailed reply to the show-cause-notices. According
\nto the appellant, it produced documentary evidence in its
\nsupport.\n<\/p>\n
3.   The adjudicating authority i.e. the Assistant
\nCommissioner, Customs & Central Excise, Division-II,
\nBhilai, after going through the evidences on record, came
\nto the conclusion that the appellant has received no
\ninputs and there was only paper transaction between the
\nappellant and the supplier. It was also recorded that the
\nunit of the supplier was closed during the relevant
\nperiod. However, Modvat invoice was issued in favour of
\nthe appellant to facilitate the appellant to avail Modvat
\ncredit.\n<\/p>\n
4.   Thereagainst the appellant preferred an appeal before
\nthe Commissioner of Central Excise (Appeals), Raipur,
\nbeing appeal No.219-222\/RPR.II\/2004.  The Commissioner of
\nCentral Excise (Appeals), Raipur, by its order dated
\n25.11.2004 confirmed the demands after denying the credit
\ntaken in respect of inputs received by the appellant and
\nupheld the findings recorded by the adjudicating authority
\ni.e. the Assistant Commissioner, Customs & Central Excise,
\nDivision-II, Bhilai.\n<\/p>\n
5.   Being aggrieved by the aforesaid order, the appellant
\npreferred an appeal before the Customs, Excise & Service
\nTax Appellate Tribunal, Principal Bench, New Delhi in
\nAppeal No.E\/513-516\/ 2005-SM.  The Customs, Excise &
\nService Tax Appellate Tribunal after having heard learned
\ncounsel for the appellant as well as departmental
\nrepresentative of the respondent observed as
\nunder :\n<\/p>\n
                 “3.  In this case, the allegation
\n               is that appellants had not received
\n               any  inputs  and only received  the
\n               invoices  and availed  the  credit.
\n               The     Revenue    conducted    the
\n               investigation at the  supplier  end
\n               and  it was found that the supplier
\n               of  inputs received the goods  from
\n               SAIL  and  same are  sold  to  some
\n               other buyers. In investigation from
\n               transporter  shows that  gods  were
\n               not   transported   to   appellants
\n               place. In the circumstances, I find
\n               no infirmity in the impugned order.
\n               IN  respect of the penalty, I  find
\n               that Commissioner (Appeals) has set
\n               aside  the  penalty  imposed  under
\n               Section   11AC.  However,   imposed
\n               penalty  under Section 173-Q  which
\n               provides  penalty upto three  times
\n               of value of offending goods. In the
\n               present  case  the  penalties  were
\n               imposed maximum to the value of the
\n               goods.  Therefore, I find no ground
\n               to  interfere with the  quantum  of
\n               penalty   also.  The  appeals   are
\n               dismissed. ”<\/p>\n
6.   The appellant has pleaded the following substantial<\/p>\n
     questions of law in the memo of appeal subsequently by way<\/p>\n
     of amendment, which reads as under :\n<\/p>\n
               “SUBSTANTIAL QUESTIONS OF LAW    <\/p>\n
               (1)  Whether  the learned Appellate
\n                    Tribunal  failed  to  exercise
\n                    its jurisdiction while granted
\n                    unconditional     stay     and
\n                    confirmed   vide  stay   order
\n                    No.547-50\/05   NB   SM   dated
\n                    26.05.2005 that the  Appellant
\n                    have     filed     documentary
\n                    evidence  in  support  of  the
\n                    receipt  and  use of  material
\n                    and    payments    made     to
\n                    suppliers, the same facts were
\n                    not  taken into account  while
\n                    passing   the   Final    Order
\n                    appealed against.\n<\/p><\/blockquote>\n
               (2)  Whether  the learned Appellate
\n                    Tribunal  failed  to  exercise
\n                    its  jurisdiction by  ignoring
\n                    the   Additional  Grounds   of
\n                    Appeal  filed by the appellant
\n                    vide  letter dated  25.10.2004
\n                    along with copies of RG  23  A
\n                    Part-I,     Stores     Receipt
\n                    Voucher,  Ledger Account  with
\n                    suppliers,   weighment   slips
\n                    wherever available in  support
\n                    of the fact that full material
\n                    was  received, accounted  for,
\n                    paid  for, & consumed  in  the
\n                    manufacture   of   the   final
\n                    excisable  products   on   the
\n                    Appellant & 2.\n<\/p><\/blockquote>\n
               (3)  Whether  the learned Appellate
\n                    Tribunal  failed  to  exercise
\n                    its    jurisdiction   by   not
\n                    mention the Additional Grounds
\n                    of   Appeal   filed   by   the
\n                    appellant and appreciate  that
\n                    imposition    of     Mandatory
\n                    Penalty under Rule 571(4) read
\n                    with  Section 11AC  equivalent
\n                    to   the   amount  of  Central
\n                    Excise  Duty confirmed against
\n                    the  Appellant No.1 & 2 for  a
\n                    period  prior to its enactment
\n                    was  not  legal. The Appellate
\n                    Commissioner,  therefore,  set
\n                    aside the Order in Original to
\n                    that  extent.   However,   the
\n                    Appellate Commissioner  failed
\n                    to  give any finding to  prove
\n                    that  the impugned goods  were
\n                    not  received or  consumed  in
\n                    the  manufacture of  excisable
\n                    final  products  of  Appellant
\n                    and   arbitrarily  upheld  the
\n                    demand of Central Excise  Duty
\n                    &  Penalty under Rule 173Q  of
\n                    the Central Excise Rules, 1944
\n                    imposed   on  Appellant   vide
\n                    Order     in    Appeal     No.
\n                    219-222\/RPR-II\/2004      dated
\n                    25.11.2004.\n<\/p><\/blockquote>\n
               (4)  Whether  the learned Appellate
\n                    Tribunal  failed  to  exercise
\n                    its    jurisdiction   ignoring
\n                    several  documentary  evidence
\n                    filed by the Appellant & 2  in
\n                    support  of receipt of  goods,
\n                    and use in the manufacture  of
\n                    excisable    final   products.\n<\/p><\/blockquote>\n
                    However,     the     Appellate
\n                    Commissioner  had  failed   to
\n                    appreciate   that    if    the
\n                    Appellant did not receive  the
\n                    impugned inputs, then how  was
\n                    it  possible for the Appellant
\n                    to   manufacture   the   final
\n                    excisable  goods  from  inputs
\n                    not  received at all ?   Thus,
\n                    the  impugned inputs were  not
\n                    only  received  and  accounted
\n                    for, and payments made to  the
\n                    supplier  by cheque  but  also
\n                    the   impugned   inputs   were
\n                    issued   for  manufacture   of
\n                    final  excisable goods,  which
\n                    were   later  on  cleared   on
\n                    payment of appropriate  amount
\n                    of Central Excise Duty.
\n               (5)  Whether  the learned Appellate
\n                    Tribunal  failed  to  exercise
\n                    its  jurisdiction by  ignoring
\n                    that,   the   Appellant    had
\n                    approached to Respondent  No.2
\n                    for  a decision on the limited
\n                    point  that  if the  Appellant
\n                    did  not  receive the impugned
\n                    inputs,   then  how   was   it
\n                    possible for the Appellant  to
\n                    manufacture     the      final
\n                    excisable  goods  from  inputs
\n                    not  received at  all  ?   The
\n                    Respondent No.2, at  the  time
\n                    of  personal hearing  of  stay
\n                    matter,   correctly   admitted
\n                    that prima-facie the facts  of
\n                    the case were in favour of the
\n                    Appellant, that the  Appellant
\n                    had       produced      before
\n                    authorities   all  documentary
\n                    evidence to establish  receipt
\n                    of   inputs.   The  Respondent
\n                    No.2  also correctly  admitted
\n                    that  sufficient  amount   was
\n                    deposited  by the Appealer  to
\n                    safeguard   the  interest   of
\n                    Revenue.     Therefore,    the
\n                    Appellate   Tribunal   granted
\n                    unconditional  stay   to   the
\n                    Appellant  vides  stay   order
\n                    No.547-50\/05    NB\/SM    dated
\n                    26.05.2005.  However, in sharp
\n                    contrast, at the time of final
\n                    hearing, the learned Appellate
\n                    Tribunal  only  went  by   the
\n                    records  relied  upon  by  the
\n                    Investigating Officers and not
\n                    by  those  documents\/arguments
\n                    put forth on record before the
\n                    Appellate            Tribunal.\n<\/p><\/blockquote>\n
                    Accordingly,   it   has   been
\n                    stated  in  Para No.1  of  the
\n                    Order appealed against “in the
\n                    impugned  order,  after  going
\n                    through   the   evidence    on
\n                    record,  the finding  is  that
\n                    the appellant have received no
\n                    inputs  and  there  was   only
\n                    paper transaction between  the
\n                    appellants and supplier.   The
\n                    finding is also that the  unit
\n                    of   supplier  of  input   was
\n                    closed   during  the  relevant
\n                    period.   However,  modvatable
\n                    invoices were issued in favour
\n                    of  the present appellants  to
\n                    facilitate availment of modvat
\n                    credit.  Against this finding,
\n                    the    contention    of    the
\n                    appellant  is  that   actually
\n                    they  have received the inputs
\n                    and  entries were made in  the
\n                    statutory record.  It is  also
\n                    contended  by  the  appellants
\n                    that   they   have  sufficient
\n                    balance   in   their    modvat
\n                    account as the appellants were
\n                    also   exporting   the   goods
\n                    without payment of Duty.   The
\n                    appellants  will not  get  any
\n                    benefit by availing the  wrong
\n                    modvat credit.  The appellants
\n                    also  submitted that  in  some
\n                    cases,   there  are  weighment
\n                    slips,  which  show  that  the
\n                    inputs  were received  by  the
\n                    appellants”.\n<\/p><\/blockquote>\n
               (6)  Whether  the learned Appellate
\n                    Tribunal  failed  to  exercise
\n                    its jurisdiction by stating in
\n                    para  3  of Final Order,  that
\n                    “In  this case, the allegation
\n                    is  that  appellants  had  not
\n                    received  any input  and  only
\n                    received   the  invoices   and
\n                    availed   the   credit.    The
\n                    Revenue     conducted      the
\n                    investigation at the  supplier
\n                    end  and it was found that the
\n                    supplier  of  inputs  received
\n                    the goods from SAIL and it was
\n                    sold to some other buyers. The
\n                    investigation from transporter
\n                    shows  that  goods  were   not
\n                    transported   to   appellant’s
\n                    place.  In the circumstance, I
\n                    find   no  infirmity  in   the
\n                    impugned order”.\n<\/p><\/blockquote>\n
               (7)  Whether  the learned Appellate
\n                    Tribunal  failed  to  exercise
\n                    its  jurisdiction by  ignoring
\n                    the   complete  track   record
\n                    filed by the Appellant showing
\n                    the following :<\/p><\/blockquote>\n
                    a.   Receipt of inputs,
\n                    b.     Issue  of  inputs   for
\n                    manufacture of       excisable
\n                    final products,
\n                    c.   Payments  made by  cheque
\n                         to the supplier.\n<\/p><\/blockquote>\n
                    d.   Manufacture of  excisable
\n                         final   product  in   the
\n                         factories  of  Appellant,
\n                         and,
\n                    e.   Clearance    of     final
\n                         excisable  products  from
\n                         respective  factories  of
\n                         the  Appellant on payment
\n                         of  appropriate amount of
\n                         Duty.\n<\/p><\/blockquote>\n
               (8)  Whether  the learned Appellate
\n                    Tribunal  failed  to  exercise
\n                    its    jurisdiction   by   not
\n                    appreciating   that   if   the
\n                    Appellant   did  not   receive
\n                    inputs,  then  how  and   from
\n                    which    inputs    did    they
\n                    manufacture   the    excisable
\n                    final products ?  So also,  if
\n                    the  supplier was closed, then
\n                    why  the Returns filed by  the
\n                    suppliers              showing
\n                    manufacturing activity  within
\n                    their   factory  were  finally
\n                    assessed  and not objected  to
\n                    by  the Revenue ?  The learned
\n                    Appellate Tribunal also failed
\n                    to   appreciate  that  if  the
\n                    documents show that the inputs
\n                    were  received,  used  in  the
\n                    manufacture   and    excisable
\n                    final  products and the  goods
\n                    so  manufactured were  cleared
\n                    on  payment  of  Duty  by  the
\n                    Appellant,  then   how   could
\n                    modvat  credit  be  denied  to
\n                    them for any lapse at the  end
\n                    of  the supplier manufacturer,
\n                    if any ? The learned Appellate
\n                    Tribunal  –  Respondent   No.2
\n                    have  grossly erred in  coming
\n                    to   a   decision   that   the
\n                    Appellant & 2 have irregularly
\n                    availed Modvat Credit  in  the
\n                    instant   case  &   that   the
\n                    impugned   goods   were    not
\n                    received by the Appellant &  2
\n                    in    their   factory.     The
\n                    Respondent No.2 has also along
\n                    discussed  the fraud committed
\n                    by   the  suppliers  but   has
\n                    miserably      failed       to
\n                    substantiate  the  charge   of
\n                    collusion  of  Appellant  &  2
\n                    with  the  supplier  with   an
\n                    intention to evade Duty & also
\n                    has failed to prove any act of
\n                    omission or commission on  the
\n                    part of the Appellant & 2. The
\n                    learned Appellate Tribunal has
\n                    thus, upheld such defective  &
\n                    incomplete  findings  of   the
\n                    Adjudicating   Authority   and
\n                    Appellate  Commissioner.   The
\n                    Respondent  No.2   failed   to
\n                    appreciate that it has  simply
\n                    been  stated in the  Order  in
\n                    Original that the Appellant  &
\n                    2  countered  & he  could  not
\n                    give      any     satisfactory
\n                    explanation to the same.   Now
\n                    this  is certainly a debatable
\n                    issue.  Either the Appellant &
\n                    2   could  not  satisfactorily
\n                    explain    or   the    learned
\n                    adjudicating authority was not
\n                    satisfied with his reply.  The
\n                    learned           Adjudicating
\n                    Authority,    the    Appellate
\n                    Commissioner as  well  as  the
\n                    Respondent No.2 also failed to
\n                    even  discussed on  the  facts
\n                    that if :\n<\/p><\/blockquote>\n
                    a.   M\/s  Jain Udyog, Tedesara
\n                         and  M\/s  Tara Re-rolling
\n                         Mills,   Tedesara    were
\n                         closed,
\n                    b.   Did not have power or had
\n                         no            electricity
\n                         generation,
\n                    c.   Did   not   receive   raw
\n                         material  in the  factory
\n                         premises   for   3   full
\n                         years.\n<\/p><\/blockquote>\n
                    a.   How  the payment of  Duty
\n                         on goods not manufactured
\n                         by      the      supplier
\n                         manufacturers  was  being
\n                         accepted.<\/p><\/blockquote>\n
\n                    b.   How   was   their   RT-12\n                         Return            showing\n                         manufacture   of    goods\n                         within    their   factory\n                         premises  being   finally\n                         assessed, and,\n                    c.   How     the     concerned\n<\/pre>\n
                         Authority  was  accepting
\n                         their    Invoice     Book
\n                         intimation every time ?
\n               (9)  Whether  the learned Appellate
\n                    Tribunal  failed  to  exercise
\n                    its  jurisdiction by  ignoring
\n                    that, the charges against  M\/s
\n                    Jain  Udyog, Tedesara and  M\/s
\n                    Tara     Re-rolling     Mills,
\n                    Tedesara  have  although  been
\n                    confirmed   on   the   serious
\n                    ground   of  mis  declaration,
\n                    suppression  of   facts   with
\n                    intention to evade payment  of
\n                    Central  Excise Duty, no  Duty
\n                    or Penalty has been ordered to
\n                    be  recovered from them &  the
\n                    Appellant  who has  reimbursed
\n                    the  amount of Central  Excise
\n                    Duty  charges in the  invoices
\n                    of  M\/s  Jain Udyog,  Tedesara
\n                    has   been  disallowed  Modvat
\n                    Credit as well as Penalty  has
\n                    been  imposed under Rule 173Q.
\n                    Further, if payment of Central
\n                    Excise Duty at the end of  M\/s
\n                    Jain  Udyog, Tedesara and  M\/s
\n                    Tara     Re-rolling     Mills,
\n                    Tedesara    has    not    been
\n                    disputed,   then  how   Modvat
\n                    credit  can be denied  to  the
\n                    Appellant   and  how   Central
\n                    Excise  Duty  can be  demanded
\n                    from  Appellant  on  the  same
\n                    goods twice ?\n<\/p><\/blockquote>\n
               (10) Whether  the learned Appellate
\n                    Tribunal  failed  to  exercise
\n                    its  jurisdiction by  ignoring
\n                    that, the Respondents have not
\n                    disputed the following facts :
\n                    a.   Payments for the purchase
\n                         of  the inputs have  been
\n                         made through cheque;\n<\/p><\/blockquote>\n
                    b.   The  inputs  in  question
\n                         have  been  used  in  the
\n                         manufacture   of    final
\n                         products, which have been
\n                         cleared  on  payment   of
\n                         Duty;\n<\/p><\/blockquote>\n
                    c.   The  department  has  not
\n                         been  able to prove  that
\n                         any other alternative raw
\n                         material was received and
\n                         used    in   the    final
\n                         products;\n<\/p><\/blockquote>\n
                    d.   The   RT-12  return  have
\n                         been assessed finally  by
\n                         the  Range Officers which
\n                         contents     all      the
\n                         documents including  (the
\n                         invoices  under disputed)
\n                         on the basis of which the
\n                         Modvat Credit has availed
\n                         and utilized;\n<\/p><\/blockquote>\n
                    e.   How     the     concerned
\n                         Authority  was  accepting
\n                         their    Invoice     Book
\n                         intimation every time ?
\n                    f.   How  can  the same  goods
\n                         suffer   Central   Excise
\n                         Duty  twice – one at  the
\n                         manufacturer supplier end
\n                         and two at the Appealer’s
\n                         end ?\n<\/p><\/blockquote>\n
               (11) Whether  the learned Appellate
\n                    Tribunal  failed  to  exercise
\n                    its  jurisdiction by  ignoring
\n                    the  case  of Commissioner  of
\n                    Central Excise, Chandigarh vs.
\n                    Neepaz Steels (India)<\/a> reported
\n                    in 2007 (213) E.L.T. 100 (Tri-
\n                    Del.) held that :\n<\/p><\/blockquote>\n
                         Penalty   on   registered
\n                         dealer   –  Inputs,   non
\n                         supply   of   –   Vehicle
\n                         Numbers   mentioned    in
\n                         invoices  alleged  to  be
\n                         not   of  Good  Transport
\n                         Vehicle – Dealer received
\n                         payment    from   various
\n                         manufacturers     through
\n                         cheques and Demand  draft
\n                         and  inputs supplied were
\n                         duly   received  by   the
\n                         manufacturers  and   used
\n                         goods  manufactured which
\n                         were  cleared on  payment
\n                         of  duty  –  No  evidence
\n                         that  manufacturers  used
\n                         some   alternative    raw
\n                         materials then which  was
\n                         mentioned any invoices  –
\n                         Penalty set aside –  Rule
\n                         25  of the Central Excise
\n                         Rules, 2002.\n<\/p><\/blockquote>\n<\/blockquote>\n
               (12) Whether  the learned Appellate
\n                    Tribunal  failed  to  exercise
\n                    its  jurisdiction by  ignoring
\n                    the   complete  track   record
\n                    filed by the Appellant showing
\n                    the following :<\/p><\/blockquote>\n
                    a.   Receipt of inputs,
\n                    b.     Issue  of  inputs   for
\n                    manufacture of       excisable
\n                    final products,
\n                    c.   Payments  made by  cheque
\n                         to the supplier.\n<\/p><\/blockquote>\n
                    d.   Manufacture of  excisable
\n                         final   product  in   the
\n                         factories  of  Appellant,
\n                         and,
\n                    e.   Clearance    of     final
\n                         excisable  products  from
\n                         respective  factories  of
\n                         the  Appellant on payment
\n                         of  appropriate amount of
\n                         Duty.\n<\/p><\/blockquote>\n
               (13) Whether  the learned Appellate
\n                    Tribunal  failed  to  exercise
\n                    its    jurisdiction   by   not
\n                    appreciating   that   if   the
\n                    Appellant   did  not   receive
\n                    inputs,  then  how  and   from
\n                    which    inputs    did    they
\n                    manufacture   the    excisable
\n                    final  products ? So also,  if
\n                    the  supplier was closed, then
\n                    why  the Returns filed by  the
\n                    suppliers              showing
\n                    manufacturing activity  within
\n                    their   factory  were  finally
\n                    assessed  and not objected  to
\n                    by the Revenue ?\n<\/p><\/blockquote>\n
               (14) Whether  the learned Appellate
\n                    Tribunal  failed  to  exercise
\n                    its    jurisdiction   by   not
\n                    appreciating   that   if   the
\n                    documents show that the inputs
\n                    were  received,  used  in  the
\n                    manufacture and the  Appellant
\n                    cleared    excisable     final
\n                    products  so  manufactured  on
\n                    payment  of  Duty,  then   how
\n                    could  modvat credit be denied
\n                    to  them for any lapse at  the
\n                    end     of     the    supplier
\n                    manufacturer, if any ?”\n<\/p><\/blockquote>\n
7.   The above-stated substantial questions of law are in<\/p>\n
     the form of grounds.  The first question of law (sic)<\/p>\n
     ground is with regard to grant of unconditional stay in<\/p>\n
     favour of the appellant by interim order.  Question No. 2<\/p>\n
     (sic) ground is vague as it does not disclose asto whether<\/p>\n
     these facts were brought into the notice before the<\/p>\n
     adjudicating authority or the Commissioner, Appeals.\n<\/p>\n
     Question No. 3 (sic) ground is purely a question of fact.\n<\/p>\n
     Question No. 4 (sic) ground is vague as no documentary<\/p>\n
     evidence produced has been detailed. Questions No. 5 to 14<\/p>\n
     (sic) grounds are pure question of facts and it does not<\/p>\n
     raise any substantial question of law warranting admission<\/p>\n
     under the provisions of section 35G of the Act, 1944 which<\/p>\n
     is a pre-requisite condition before admitting the appeal.\n<\/p>\n
8.   It is well settled principle of law that the
\nsubstantial question of law has to be framed on the
\nfindings available on record not on any conjecture or
\nsurmises. (See Commissioner of Income Tax v. P.
\nMohanakala1).\n<\/p>\n
9.   The appellant has raised the questions of law, which
\nare not questions of law, but the grounds on facts
\nwithout, there being any consideration before the
\nauthorities below.  The appellant has failed to produce
\nany document to demonstrate that the questions (sic)
\ngrounds raised hereinabove were raised before the
\nCommissioner of Central Excise (Appeals), Raipur as well
\nas before the Customs, Excise & Service Tax Appellate
\nTribunal, Principal Bench, New Delhi and thereon, the
\nfinding has been recorded.  Thus, the above stated
\nquestions of law, in our considered opinion, do not
\nconstitute questions of law much less the substantial
\nquestions of law.\n<\/p>\n
10.  Section 35G of the Act, 1944 reads as under :\n<\/p>\n
               35G. Appeal to High Court.-(1) An
\n               appeal  shall  lie  to  the  High
\n               Court from every order passed  in
\n               appeal  by the Appellate Tribunal
\n               on  or after the 1st day of July,
\n               2003    (not   being   an   order
\n               relating, among other things,  to
\n               the determination of any question
\n               having a relation to the rate  of
\n               duty of excise or to the value of
\n               goods   for   the   purposes   of
\n               assessment), if the High Court is
\n               satisfied that the case  involves
\n               a substantial question of law.\n<\/p><\/blockquote>\n
11.  Section 260-A of the Income Tax Act, 1961 (for short<\/p>\n
     `the Act, 1961′) reads as under :\n<\/p>\n
               “260A. Appeal to High Court.-(1) An
\n               appeal shall lie to the High  Court
\n               from  every order passed in  appeal
\n               by  the Appellate Tribunal 2[before
\n               the  date of establishment  of  the
\n               National Tax Tribunal], if the High
\n               Court  is  satisfied that the  case
\n               involves a substantial question  of
\n               law.\n<\/p><\/blockquote>\n
12.  The provisions of Section 35G of the Act, 1944 and<\/p>\n
     the provisions of the Section 260-A of the Act, 1961 are<\/p>\n
     pari materia.  Thus, the Supreme Court  in P. Mohanakala<\/p>\n
     (supra) dealing with the provisions of Act, 1961 with<\/p>\n
     regard to question of law observed as under :\n<\/p>\n
               “26.  Relying  on the decisions  of
\n               this  Court in Bejoy Gopal Mukherji
\n               v.  Pratul Chandra Ghose and Orient
\n               Distributors<\/a> v. Bank of India  Ltd.
\n               Shri  Iyer, learned Senior  Counsel
\n               contended  that issue  relating  to
\n               the  propriety of legal  conclusion
\n               that  could  be drawn on  basis  of
\n               proved  facts  gives  rise   to   a
\n               question of law and, therefore, the
\n               High   Court   is   justified    in
\n               interfering in the matter since the
\n               authorities below failed to draw  a
\n               proper  and logical inference  from
\n               the proved facts. We are unable  to
\n               persuade  ourselves to  accept  the
\n               submission.  The findings  of  fact
\n               arrived at by the authorities below
\n               are based on proper appreciation of
\n               the    facts   and   the   material
\n               available on record and surrounding
\n               circumstances. The doubtful  nature
\n               of  the  transaction and the manner
\n               in   which  the  sums  were   found
\n               credited  in the books of  accounts
\n               maintained  by  the  assessee  have
\n               been  duly taken into consideration
\n               by   the  authorities  below.   The
\n               transactions  though apparent  were
\n               held  to be not real ones.  May  be
\n               the  money  came  by  way  of  bank
\n               cheques   and   paid  through   the
\n               process of banking transaction  but
\n               that itself is of no consequence.”\n<\/p><\/blockquote>\n
13.  Further   in   Paras  Ship  Breakers  Limited   v.\n<\/p>\n
     Commissioner of Central Excise2, the Supreme Court<\/p>\n
     observed as under:\n<\/p>\n
               “16.  In  terms of Section 35-G  of
\n               the  Central Excise Act,  the  High
\n               Court,  thus,  could  entertain  an
\n               appeal  only if a question  of  law
\n               arose.  No question of law  having,
\n               thus,   arisen   for  consideration
\n               before  the High Court, we  are  of
\n               the   opinion  that  the   impugned
\n               judgment  does not suffer from  any
\n               legal infirmity.”\n<\/p><\/blockquote>\n
14.  The Supreme Court, while considering the substantial<\/p>\n
     question of law in Sir Chunilal V. Mehta and Sons Ltd. v.\n<\/p>\n
     Century Spinning and Manufacturing Co. Ltd.3, observed as<\/p>\n
     under :\n<\/p>\n
               “6.   We  are in general  agreement
\n               with the view  taken  by the Madras
\n               High  Court and we think that while
\n               the  view taken by the Bombay  High
\n               Court  is  rather  narrow  the  one
\n               taken  by the former High Court  of
\n               Nagpur  is  too wide.   The  proper
\n               test  for  determining  whether   a
\n               question of law raised in the  case
\n               is   substantial  would,   in   our
\n               opinion,  be  whether  it   is   of
\n               general   public   importance    or
\n               whether     it     directly     and
\n               substantially affects the rights of
\n               the parties and if so whether it is
\n               either  an  open  question  in  the
\n               sense   that  it  is  not   finally
\n               settled  by this Court  or  by  the
\n               Privy  Council  or by  the  Federal
\n               Court   or   is   not   free   from
\n               difficulty  or calls for discussion
\n               of   alternative  views.   If   the
\n               question is settled by the  highest
\n               Court or the general principles  to
\n               be   applied  in  determining   the
\n               question are well settled and there
\n               is  a  mere  question  of  applying
\n               those principles  or that the  plea
\n               raised   is  palpably  absurd   the
\n               question would not be a substantial
\n               question of law.”\n<\/p><\/blockquote>\n
15.  The ratio laid down in Sir Chunilal V. Mehta (supra)<\/p>\n
     was referred approvingly in Mahindra and Mahindra Ltd. v.\n<\/p>\n
     Union of India and Another4.\n<\/p>\n
16.  Needless to say if there is no substantial question
\nof law involved, the appeal has to be dismissed.  (See
\nBoodireddy Chandraiah and Others v. Arigela Laxmi and
\nAnother5).<\/a>\n<\/p>\n
17.  Applying the well-settled principles of law to the
\nfacts of the case on hand and for the reasons mentioned
\nhereinabove, the appellant has not raised any question of
\nlaw much less the substantial questions of law warranting
\nadmission under the provisions of Section 35G of the Act,
\n1944.\n<\/p>\n
18.  In the result, the appeal is dismissed for want of
\nsubstantial question of law.\n<\/p>\n
19.  There shall be no order asto costs.\n<\/p>\n
                                                      J u d g e<\/p>\n","protected":false},"excerpt":{"rendered":"
Chattisgarh High Court Ms Simplex Castings Limited vs Union Of India & Others on 16 February, 2010 HIGH COURT OF CHATTISGARH BILASPUR Tax Case No 43 of 2007 Ms Simplex Castings Limited …Petitioners Versus Union of India & Others …Respondents ! Ms Ritu Mishra counsel for the petitioner ^ Shri Bhishma Kinger standing counsel for […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[12,8],"tags":[],"class_list":["post-103493","post","type-post","status-publish","format-standard","hentry","category-chattisgarh-high-court","category-high-court"],"yoast_head":"\nMs Simplex Castings Limited vs Union Of India & Others on 16 February, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ms-simplex-castings-limited-vs-union-of-india-others-on-16-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ms Simplex Castings Limited vs Union Of India & Others on 16 February, 2010 - 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