TaxTMI 
TaxTMI 
2008 (2) TMI 554
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....he undisputed facts in brief infra. 3. The appellant (assessee) is engaged in the business of manufacturing of "Rigid Polyurethene foams and articles" having their unit at Pithampur. These goods are excisable and fall under Chapter Heading 39 of Central Excise Tariff Act. 4. On 24-8-01, the Assistant Commissioner Central Excise issued a show cause notice (Ann. 3), to the appellant. It was for the period August, 2000 to March 2001 as is clear from following recital contained in para 3 of show cause, which reads as under : "During the period August 2000 to March 2001, the notice have cleared Puf/Sections and Boards valued at Rs. 8,74,698/- to Indian Navy on which duty involved is Rs. 13,9,952/- as shown in the enclosed (Annexure-A)." 5. In substance, according to Assistant Commissioner, the assessee during the period in question cleared their product "Rigid Polyurethene foam board section/sheets" without payment of excise duty by taking benefit of exemption Notification No. 64/95 dated 16-3-95 to which they were not eligible to claim. This is what is mentioned in the show cause notice; "The noticee has filed classification declaration under erstwhile Rule 173B of C. Ex....
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....ase that they supplied the goods to Indian Navy and since the goods supplied & satisfied the requirement of exemption notification, hence, they were not liable to pay any excise duty on the goods manufactured and supplied. 8. By order dated 25-9-02 (Ann.6), the adjudicating authority did not accept the contention of appellant and accordingly confirmed the demand contained in 2 show cause notices as also imposed penalty of Rs. 10,000/-. This is what the adjudicating authority (Deputy Commissioner) concluded in his order dated 25-9-02. "Accordingly I pass the following order : ORDER I confirm the demand of Rs. 29,3,481 raised under Show Cause Notice No. IV(16)30-103//2001/D-II/Appr/8743 dated 22-8-01 and IV(16)30-203/01/D-II/C-III/Appr/420 dated 11-4-02 respectively against M/s. Lloyd Insulation (India) Ltd. Pithampur. I impose penalty of Rs. 10,000 (Rs. 5000/- in each case) against M/s. Lloyd Insulation (India) Ltd. Pithampur under Rule 173Q of the Central Excise Rules, 1944, and under 25 of Central Excise Rules, 2001, as the case may be. The notice are further informed that in the event of their failure to on pay the above said dues within the stipulated time for ....
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.... demand is factually correct and the demand to this extent would be ab initio wrong. 8. In the light of the above discussion I have no hesitation in holding that the impugned order is not sustainable and accordingly, I set aside the same and allow the Appeal of the Appellants." 10. It is against this order, the Revenue (Commissioner of Central Excise) felt aggrieved and filed Appeals to Tribunal. By impugned order, the Tribunal allowed the appeal of Revenue and while setting aside of the first appellate order of Commissioner of appeal restored that of adjudicating authority. It is against this order, the assessee has filed this appeal under Section 35G of the Act. 11. Heard Shri R. Nair, learned counsel for the appellant and Shri Viney Zelawat, learned counsel for the respondent. 12. Learned counsel for the appellant (assessee) while a scrolling the legality and correctness of the order passed by Tribunal contended that both reasoning and conclusion arrived at by the Tribunal is not factually/legally sustainable. According to him the Tribunal while reversing the finding of fact did not record any finding that supply of goods in question were not made to Indian Navy and ....
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....mely whether goods in question were supplied to Indian Navy by the assessee and secondly, whether these goods were supplied as stores for consumption on board a vessel of Indian Navy. So long as categorical finding of fact on these 2 material issues is not recorded by Tribunal either way, the appeal filed by Revenue could not have been allowed or dismissed. It is coupled with categorical finding on the allegations made in the 2 show cause as to whether such factual allegations are made out against the assessee as complained by Revenue or not? In other words, when the Commissioner of Appeals recorded a categorical finding of fact in favour of assessee then the appeal of Revenue could have been allowed only by reversing and recording reverse categorical finding of fact by the Tribunal. At the same time it was equally necessary for the Tribunal to have recorded a finding that factual allegation levelled in the show cause are made out or not and if so how and on what basis? 15. Since on careful perusal of the impugned order of Tribunal, it does not show that any finding much less categorical finding of fact on aforementioned 3 issues is recorded either way, hence, we cannot sustain ....