CCE Vs. INTERNATIONAL CYLINDERS PVT. LTD.

JUDGEMENT

(1.) THIS is a reference application filed by the Commissioner of Central Excise, Chandigarh for reference of a case under Section 35G of the Central Excise Act, 1944 to the Hon'ble High Court. In Annexure B to the reference application, the Commissioner has listed 8 pieces of evidence which the Tribunal had allegedly not considered while allowing the appeal filed by M/s. International Cylinder Pvt. Ltd. The Tribunal had by Final Order No. A/273/98 -NB dated 5.5.1998 giving the benefit of doubt to the appellants set aside the impugned order while allowing the appeal. The Commissioner in Annexure B has listed out the following pieces of evidence which according to him, have not been considered by the Tribunal in its totality and in view of certain decisions cited in the said Annexure, the Commissioner has stated that a question of law has arisen as to whether the evidence brough -forth by the Department and referred to in paras (a) to (h) was not sufficient to establish the charge of clandestine clearance and removal and consequently evasion of Central Excise duty.

(2.) THE Commissioner has relied on the judgments of the Madras Chemicals reported in : 1986 (24) ELT 308 : 1986 (7) ECR 202 (T) holding that legal proof was not necessarily perfect proof but only a prudent man's estimate as to the probabilities of the case. As also the decision in N.A. Mohammad Kunhi v. Commissioner of Customs Bombay reported in : 1998 (98) ELT 569 holding that the degree of proof as required in the adjudication proceedings is not the same as required in prosecution in the Court of Law and the Mysore Metal Industries reported in, 1998 (17) ECR 639 passed by the Supreme Court holding that with the evidence brought forth by the department the burden of proof shifts to the assessee.

(3.) SHRI Randhir Singh, ld. advocate appearing for the respondents submits that the reference application is not maintainable since no question of law has arisen from the Final order and the potions raised in the application in sub -paras (a) to (h) relate to appreciation of evidence by the Tribunal. He submits that the Tribunal in paragraph 6 of its order has examined the evidence on record which covered contentions advanced by the party in coming to the conclusion that the appellants have to be given the benefit of doubt. No question of law can, therefore, be said to arise from the impugned Final Order and therefore the reference application be rejected.