- (1.) By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has allowed the appeal of the department. Counsel for the appellant pointed out that the appellant has preferred this appeal against the finding which has been arrived at against him.
(2.) This court while admitting the matter framed the following substantial questions of law: "i) Whether in the facts and circumstances of the case, learned Tribunal was right in law in allowing the appeal of revenue with regard to imposition of interest u/s 11AB of the Act, especially when it is an admitted fact that the liability to pay the disputed duty arose on 18.12.2000 i.e. prior to the day when provisions of Section 11AB were not in force in terms of Section 11AB (2) of the Central Excise Act, 1944? ii) Whether in the facts and circumstances of the case, and as per settled position of law, the learned Tribunal was right in law in imposing equivalent penalty u/s 11AC of the Act especially when the demand of duty to the tune of Rs. 1,13,825-were deposited prior to issuance of show cause notice and proviso to Section 11AC grants an abatement of 75% if the duty is deposited within 30 days of receipt of order in original? iii) Whether in the facts and circumstances of the case the findings arrived at by the learned Tribunal will be termed perverse and violative of principles of natural justice as it has not considered the fact of marketability vis-a-vis Section 2(d) of the Act and the removal of goods under cover of challan?"
(3.) Counsel for the appellant has taken us to the order of the Tribunal which reads as under:- "The contention of the counsel that the seized goods from the auto rickshaw had no marketability and as such no duty could be charged, cannot be accepted as it was never pleaded before the authorities below. Moreover, it is difficult to accept that the seized adopters and rims have no market value. No evidence has also been produced by the assessee even to substantiate this plea. The ratio of the law laid down in Union of India vs. Sornic Electrochem (P) Ltd., 2002 145 ELT 274 (SC) referred to by the counsel, wherein the criteria for determination of marketability of the goods has been laid down by the Apex Court is not attracted to the case in hand, rather it goes against the assessee/respondents as it has been observed by the Apex Court that essence of marketability is neither form nor in shape or condition of the article, but the commercial identity of the article known to the market.";