- (1.) The revenue has preferred this appeal under Section 35G of the Central Excise Act, 1944 (in short "the Act") against the order dated 29.6.2011, Annexure A.4 passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for brevity, "the Tribunal") in Central Excise Appeal No.2004 of 2005, claiming following substantial questions of law:- "i) Whether in the facts and circumstances of the case, the Hon'ble Tribunal is correct in not accepting that the entries in the "note book" can be relied upon as evidence of clandestine removal of excisable goods without payment of duty in the light of modus operandi confirmed by corroborative evidence collected by the department as under:- a) in the form of enquiries conducted from the District Transport Authorities and Municipal Authorities in respect of mentioning of fake registration number of vehicles on Octroi receipts. b) double clearance on the same set of invoice by changing the time of preparation/removal on the said invoices. c) confessional statements of S/Shri Avtar Singh, Contractor and Shri John Masih, Kanda incharge with regard to maintaining the "note book". ii) Whether, in the facts and circumstances of the case, the Hon'ble Tribunal was justified in holding that there was no corroborative evidence sufficient to prove clandestine removal of goods and evasion of Central Excise duty."
(2.) Briefly, the facts as narrated in the appeal may be noticed. The respondent-company M/s Renny Steel Castings (P) Limited is engaged in the manufacture of non alloy steel ingots falling under subheading No.7206.90 of the First Schedule to the Central Excise Tariff Act, 1985. On 20.5.1996, officers of the Central Excise Headquarters Preventive intercepted one truck bearing Registration No.PB-10U-9913 which was coming back to the factory of the respondent after delivering the goods to M/s Saeco Iron & Steel Mills, Ludhiana but carrying back the original, duplicate and triplicate copies of invoice No.85 dated 20.5.1996 issued by the respondent. In the follow up action, 15.410 MT of non alloy steel ingots received by M/s Saeco Iron and Steel Mills Ludhiana were seized as the same were received without any document. Show Cause Notice dated 14.11.1996 was issued to the respondent on 14.11.1996. The respondent deposited the sum determined by the authority vide order dated 19.2.1999. During the follow up action, the officers also visited the factory premises of the respondent and certain incriminating documents were recovered from a room situated near the boundary wall on the day of the visit i.e. 20.5.1996. Statements of some employees of the respondent company were recorded and after scrutiny of the documents recovered, it was revealed that the respondent had been indulging in the evasion of Central Excise duty in a clandestine manner. It was found that the respondent had clandestinely cleared 2145.030 MT of steel ingots without payment of duty amounting to Rs. 32,64,395/- from 19.1.1996 to 19.5.1996. Accordingly, Show Cause notice dated 1.2.2000, Annexure A.1 was issued to the respondent to show cause as to why Central Excise duty amounting to Rs. 32,64,395/- be not recovered from it under Rule 9(2) of the Erstwhile Central Excise Rules, 1944. Interest and penalty were also proposed to be imposed upon the respondent. The adjudicating authority vide order dated 7.4.2004, Annexure A2 confirmed the demand of Rs. 71,015/- only and imposed penalty of equal amount. Aggrieved by the order, the department filed an appeal before the Commissioner(Appeals) who vide order dated 14.1.2005, Annexure A.3 rejected the same. The department filed second appeal before the Tribunal. Vide order dated 29.6.2011, Annexure A.4, the Tribunal dismissed the appeal. Hence this appeal by the department.
(3.) Learned counsel for the appellant-revenue submitted that the adjudicating authority as well as the appellate authority have erroneously decided the issue against the revenue. According to the counsel, once certain entries were there in the note book which was found in possession of the respondent-assessee, the authorities below were not justified in holding that there was no clandestine removal of excisable goods.;