A.Lala, J. - (1.) This writ petition was made by the Commissioner, Central Excise, Calcutta-II Commissionarate, challenging the two orders passed by the CEGAT on 5th of March, 1998 and 18th of September, 1998.
(2.) From the first order it appears that there was a difference of opinion in between judicial and technical members of the tribunal when the matter was referred to consider by a third member and such order of the tribunal is dated 18th of September, 1998.
(3.) Respondent Nos. 1, 2 and 3 are the dealers of steel materials. They purchase large number of steel materials from the companies like TISCO and SAIL. They pay their usual excise duties. They sell it to small traders who, in turn, entitled for benefit under MODVAT scheme made for themselves. The respondent Nos. 1, 2 and 3 are not at all entitled for such benefit. Good, bad, indifferent, Commissioner of Central Excise adversely held against the respondent Nos. 1, 2 and 3 and imposed penalty upon themselves. However, being aggrieved by or dissatisfied therewith such respondents preferred an appeal before the CEGAT. In CEGAT when the judicial member therein affirmed the order of the Commissioner of Central Excise in imposing penalty but the technical member held otherwise. Therefore, there was a point of difference. The matter was rightly referred to a third member who was also a technical member. Such technical member was also held in favour of the respondent Nos. 1, 2 and 3. Hence, taking the majority view tribunal opined in favour of the respondents. The reference application was also made before the tribunal when on 22nd June, 1999 the tribunal held that it is well settled position that sufficiency of evidence is not a question of law as held by the Apex Court in the case of Mennakshi Mills i.e. 31 ITR 28 and the applications were rejected. Although the copy of the order passed by the tribunal in the reference application but not prayer has been made in connection thereto in this writ petition. Whatever prayers made herein those are in respect of prior investigation of facts which are already merged with the subsequent orders by legal analysis.;