M.M. Kumar, J. - (1.) THE instant appeal filed under Section 35 -G of the Central Excise Act, 1944 (for brevity 'the Act') is directed against order dated 24.11.2010 (A -5), passed by Customs Excise and Service Tax Appellate Tribunal, New Delhi, (for brevity 'the CESTAT'), rejecting the claim made by the appellant -revenue that the penalty amount imposed in the order in original dated 29.07.2004 (A -1), be restored and order dated 10.08.2005 (A -2) passed by the Commissioner (Appeals) be set aside. The factual account is available in the order of the CESTAT and we do not wish to refer to the facts in detail. However, suffice it to say that on 10.05.2001, the officer of the Revenue visited the premises of the assessee -respondent and found shortage of 40,187 kgs. inputs, namely, plastic granules on which credit has been taken. On acceptance of shortage of inputs by the assessee -respondent, the credit amounting to Rs. 3,34,356/ -was paid voluntarily. There are separate proceedings pending in respect of the aforesaid transaction.
(2.) ON 03.11.2001, in another visit by the officers of the Revenue, a shortage of 32,249.4 Kgs. of finished goods, namely, plastic woven fabrics was found which was valued at Rs. 14,51,223/ -, and 2298.3 Kgs. of plastic sacks were valued at Rs. 1,10,318/ -. This resulted into issuance of a show cause notice demanding a sum of Rs. 2,49,847/ -as amount of duty along with interest and penalty leviable under Rule 25 of the Central Excise Rules, 2002 (for brevity 'the Rules') read with Section 11ACof the Act. The assessee -respondent deposited a sum of Rs. 1,50,000/ -on 04.11.2001 and another sum of Rs. 1,00,000/ -on 05.06.2003. The original authority vide order dated 28.03.2004 confirmed the demand of duty as proposed in the show cause notice and also imposed penalty equivalent to the amount of duty. On appeal to the Commissioner (Appeals), the demand of duty was upheld along with interest as per directions issued in the order in original. However, the amount of penalty was reduced to Rs. 60,000/ -. The Revenue as well as the assessee -respondent filed appeal before the CESTAT demanding deletion of penalty and demand of duty and the revenue claimed in its appeal the enhancement of the penalty equivalent to the amount of duty. The CESTAT has dismissed both the appeals holding that before adjudication by the original authority, entire amount of duty involved on the shortage of finished goods stood paid and there was no link between shortage of finished goods found on 03.11.2001 with the shortage of inputs found on 10.05.2001. It was further held that it was a clear case of non -accounted shortage and penalty was warranted under Rule 25(1)(b) of the Rules and that there was no evidence relied upon by the Revenue justifying in invoking Section 11AC of the Act. Accordingly, the CESTAT held that the demand of amount of duty and interest by the original authority was wholly justified. The CESTAT also upheld the penalty upto Rs. 60,000/ - as it was found to be justified. Accordingly, the appeal filed by the Revenue as well as the one filed by the assessee -respondent were dismissed.
(3.) HAVING heard learned counsel for the appellant -revenue, we are of the considered view that the discretion exercised by the CESTAT does not suffer from any jurisdictional error nor it violates any provision of law. Mr. H.P.S. Ghuman, learned counsel for the appeal has not been able to point out anything from the record for taking a view different than the one taken by the CESTAT and the Commissioner (Appeals). The amount of duty has been paid along with admissible interest. It has come on record that the matter with regard to shortage of inputs is being separately proceeded. Accordingly, we do not find any question of law much less the substantive question of law warranting admission of the appeal.;