2002 PLP 3003 (YLR)

2. The order‑in‑original dated 17‑1‑1975 passed by Collector Central Excise and Land Customs, Peshawar was maintained in appeal by the learned Member, Central Board of Revenue. The revision petition against the appellate order was transferred to the Customs Excise and Sales Tax Appellate Tribunal after it became functional on 3‑3 1995.

3. A Division Bench of the learned Tribunal through their order recorded on 31‑12‑1995 maintained the findings earlier recorded by the Revenue Authorities though ‑they proceeded to cancel the penalty imposed upon the assessee. In that manner allowed the appeal partly as the Excise Duty was held be justified both law as well as in fact.

4. The reference application filed by the petitioner under section 36‑C of Act, 1944 as existing at the however rejected by them on 9‑4‑1996 after they concluded that no question of law had arisen out of their order.

5. Through this application under sub section (3) of section 36‑C of the Central Excises Act, 1944 (since amended) the petitioner seeks a direction to the Tribunal requiring them to state the case and refer the following two questions earlier put forth before:‑‑ (i) Whether under the facts and circumstances of the case Honourable Tribunal was justified to confirm the levy of Central Excise Duty at Rs.7,86,538 under Rule 226(2) of the Central Excise Rules, 1944. (ii) Whether under the facts and circumstances of the case Honourable Tribunal was justified to confirm the levy of Central Excise Duty by ignoring the contentions raised before it.

6. It is the case of the petitioner that the learned Tribunal never felt certain of the evidence collected by the Revenue. According to the learned counsel the orders of the Revenue Authorities were based upon conjectures and the appellant was held liable to Excise Duty without bringing adequate material on record. To support this contention learned counsel claims that cancellation of penalty by the learned Tribunal itself indicates that there has never been a deliberate mis declaration by the assessee as a manufacturer. Learned counsel for the Revenue however, opposes the prayer.

7. After hearing the learned counsel for the parties we are of the view that the questions of law as framed do arise out of the order of the Tribunal as the evidence collected by the Revenue was accepted by the Tribunal without being convinced of its strength.

8. That being so, we will allow this application but in the given situation will consolidate both the proposed questions in the following form: "Whether in the facts and circumstances of the case the learned Tribunal was justified in maintaining the findings of facts on the basis of the evidence/material brought on record by the Revenue?"

9. The Tribunal accordingly is directed to state a case in terms of the aforesaid provisions of the Act and refer it accordingly.

10. Petition accepted. S.A.K./L‑33/L. Petition accepted.