Revenue is in appeal against the judgment of the Tribunal dated 1/10/2010, raising following questions of law for our consideration :
[A] Whether, in the facts and circumstances of the case, the learned CESTAT was right in law in setting aside the demand of Rs.4,39,229/- (Rs.4,34,245.07-C.E.Duty+Rs.4983.05-E.Cess)towards illicit clearance of 'Plastic Bags' in the guise of 'Lay Flat Tubing' as mentioned in Annexure -A to the show cause notice dated 16.4.2007 ?
[B] Whether, in the facts and circumstances of the case, the learned CESTAT was right in law in setting aside the demand of Rs.1,01,996/- (Rs.1,01,253/- C.E.Duty + Rs.743/- E.Cess) towards illicit clearance of 'Plastic Granules' in the guise of 'Lay Flat Tubing' as mentioned in Annexure -A to the show cause notice dated 16.4.2007 ?
[C] Whether in the facts and circumstances of the case, the learned CESTAT was right in law in upholding the claim of the respondent -assessee for treating the amount (sale considerations) received by the assessee, as cum duty amount ?
[D] Whether in the facts and circumstances of the case, the learned CESTAT has erred in law in giving option to the respondent to pay duty, interest and penalty within 30 days from the date of the communication of the order to avail the benefit of reduced penalty @ 25% of the duty as per the proviso of Section 11AC of the Central Excise Act, 1944 ?
Having heard learned counsel for the Revenue and having perused the orders on record, so far as Question No. (A) & (B) are concerned, in particular, the impugned order of the Tribunal, we are of the opinion that the entire issue is based on appreciation of evidence. The Tribunal having assessed the evidence and come to a certain factual findings, in our opinion, no question of law arises.
With respect to Question No. (D) is concerned, we find that the ratio is covered by the decision of this Court in case of Commissioner of C. Ex. & Cus., Surat-I Vs. Bhagyoday Silk Industries reported in 2010 (262) ELT 248(Guj.) Such a question therefore, requires no consideration.
With regard to Question (C), learned counsel submitted that the Tribunal granted the benefit to the assessee on the basis of cum duty computation which was contrary to the materials on record.
Issue notice for consideration of question 'C' only, returnable on 9th February, 2012.
{Akil Kureshi, J.} {Ms.Sonia Gokani,J.} bina Top