- (1.) This is a petition under Section 35H(1) of the Central Excise Act, 1944 (for short, 'the 1944 Act') for directing the Customs, Excise and Gold (Control) Appellate Tribunal (for short, 'the Tribunal') to submit a statement of case and refer the following questions of law for the opinion of this Court: "(a) Whether statement given under Section 14 of the Central Excise Act is admissible in evidence, especially when the same was not retracted at any stage keeping in view the fact that proceedings under Section 14 are the Judicial proceedings? (b) Whether the Department is required to probe and prove its case of mathematics precision or is required to establish such a degree of probabilities that a prudent man on its basis believe the existence of the facts in issue. As held by Hon'ble Supreme Court in Collector, Customs and Ors. v. D. Bhoor Mall reported as 1983 (13) E.L.T. page 1546. (c) Whether the Tribunal is right in accepting the plea of the assessee which is not even raised in the ground of appeal or before the Commissioner that statement of the truck driver cannot be taken into consideration. Since they have not been given the opportunity for cross-examination. Whereas 12 notices were issued to the assessee or its authorised signatories, but they have not chosen to appear before the revenue authorities? (d) Whether the Tribunal was right in holding that it is not a case of the Revenue that there was no misdeclaration regarding description of the goods in the bills of the entries by the appellant and no case regarding the clandestine removal of those goods by the assessee from the factory is made out? (e) Whether the Tribunal is justified in holding that there is nothing on the record to suggest that imported goods were not used by the assessee for manufacturing, whereas there is a specific and sufficient evidence on the record that the goods never reached factory premises and were unloaded at M/s. Gayatri Exports as per the statement of the driver of the truck? Moreover, as per the statement of Mr. B.D. Jha crushing Machine installed in factory has not been used from the last six months? (f) Whether it was incumbent upon the assessee to prove that the goods actually reached factory premises when the revenue has already proved on the record that the goods cleared by the customs authorities were off loaded at M/s. Gayatri Exports? (g) Whether the Tribunal was justified in holding that once the customs authorities cleared the goods and has not seized the goods on the grounds of misdescription, it debars the Central Excise Deptt. from raising the issue in case of evasion of the payment of the Central Excise? (h) Whether ratio of the law laid down by the Tribunal in the case of Bhillai Conductor is applicable in the facts and circumstances of the present case?"
(2.) For deciding whether or not the questions framed by the petitioner are the questions of law requiring determination by this Court, we may briefly notice the facts.
(3.) Respondent No. 1 is engaged in the manufacture of acrylic sheet falling under Chapter heading 39.20 of the Central Excise Tariff Act, 1985. On 23-12-1999, the preventive staff of the Central Excise visited the factory premises of respondent No. 1 and carried out stock taking of raw material and finished excisable goods. S/Shri Braham Deo Jha and Kapil Dev Aggarwal, representatives of respondent No. 1 were associated with this exercise. As a result of physical stock taking, 1,49,347 kgs. of crushed/broken pieces of acrylic were found against the recorded balance of 1,77,441 kgs. of sheets/off-cuts of PMMA and 400 kgs. of DBP-Plasticizer against the recorded balance of 100 kgs. in form IV Register. Besides these, 1829 kgs. of acrylic sheet (finished excisable goods) valued at Rs. 79,740/- involving duty of Rs. 19,138/- were found in excess of recorded balance in RG-I Register, Panchnama dated 23-12-1999, 24-12-1999, 25-12-1999 and 26-12-1999 were drawn on the spot and the goods were detained for verification and further investigation. In his statement dated 24-12-1999 recorded under Section 14 of the Central Excise Act, 1944, Shri B.D. Jha, respondent No. 4 stated that the raw material (Acrylic) as mentioned above, were imported under Bills of Entry No. 212918, dated 29-7-1999, 322715, dated 1-10-1999 and 151462, dated 16-11-1999. Thereafter, the Director and other representatives of respondent No. 1 were summoned for recording their statements, but they did not appear despite service of notices. The transporters of the goods were also summoned and the statements of the driver and the owner were recorded under Section 14 of the 1944 Act.;