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2019 (11) TMI 122 - HC - Central ExciseClandestine removal - SS Ingots - cross examination of the witnesses - production capacity of respondents - matching of actual production with electricity consumption and fuel consumption - Section 35H of the Central Excise Act, 1944 - HELD THAT:- It appears that there are allegations about production capacity of the respondent. As per Department – appellant, production capacity of the respondent of SS Ingots is 13,580 MT per annum whereas as per respondent and the evidences led by the respondent with the help of Engineer Certificate dated 1st July, 2008 the production capacity of the respondent of SS Ingots is 1963 MT per annum. There are allegations and counter allegations about the DG Set transformers and the crucible furnaces. Be that as it may, the fact remains that the order passed by the CESTAT is on appreciation of the evidences on record and this appellant is in search of re-appreciation on record. Hence, it cannot be said that any substantial question of law is involved - Much has been argued out by the counsel for appellant about the procurement of the documentary evidences like a kutcha receipt of sale from the computer which was found in custody of Mr. Sahu. There is already an appreciation of facts done by CESTAT while pointing out that this appellant has failed to prove the production of SS Ingots, sale of SS Ingots and procurement of the raw material. So far as procurement of the raw material is concerned, there is no convincing evidence on record, as stated by CESTAT which requires interference by CESTAT to the Order-in-Original dated 10th October, 2013 and therefore, we see no reason to re-appreciate those evidences on record. This appellant has failed to prove the clandestine removal of the final product. Even otherwise, all the arguments of this appellant is based upon re-appreciation of the evidence by the CESTAT. The CESTAT is the final fact finding authority, and in matters such as this, an appeal lies, from the final order of the CESTAT, to this Court, only on substantial questions of law. Matters involving appreciable evidence ordinarily, would not involve substantial question of law, as this Court, in exercise of its powers conferred by Section 35H of the Act, is not empowered to re-appreciate evidence, which has already been appreciated by the CESTAT. There is nothing to indicate compliance with the strict stipulations contained in subsections (1) and (2) of Section 36B of the Act in the present case. There are no reason to interfere with the findings of the CESTAT regarding non-compliance of Section 36B of the Act either - there are no substantial question on law is involved in this Central Excise Appeal - appeal dismissed.
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