JUDGMENT K.S. Jhaveri, J. - Heard on application (26168) filed in Excise Appeal (Excia) No. 70/2017 to waive the defect/s. The application (26168) is allowed and the defect/s pointed out by the office are waived. In both these appeals, common question of law and facts are involved therefore, they are decided by the common judgment. 2. By way of these appeals, the appellant has challenged the judgment and order of the Tribunal whereby Tribunal has allowed the appeal of the assessee reversing the view taken by the original authority imposing the liability of payment of excise and penalty. 3. Learned counsel for appellant has framed in Excise Appeal No. 69/2017, the following substantial questions of law : - (a) Whether the Hon''ble CESTAT is correct in holding that confirmation of demand of duty on impugned goods was not sustainable merely on the basis of presence of machines and certain statements of labourers and accountants whereas there were evidences in form of verification and still photography of machines and confessional statement of Shri Rajesh Goyal, Director? and; (b) Whether the Hon''ble CESTAT is correct in setting aside the demand of nonpayment of Central Excise Duty of Rs. 3,17,41,935/- by holding that the statements of concerned persons used as corroboratory evidences were not legally sustainable as cross-examination of witnesses was not allowed by the adjudicating authority whereas the assessee had not claimed that statements of said persons were factually wrong or they had any bias or malice towards the assessee and cross-examination of such persons would not have reduced the weight of evidentiary value of their statements. 4. Learned counsel for appellant has framed in Excise Appeal No. 70/2017 the following substantial questions of law : - (a) Whether the Hon''ble CESTAT is correct in holding that confirmation of demand of duty on impugned goods was not sustainable merely on the basis of presence of machines and certain statements of labourers and accountants whereas there were evidences in form of verification and still photography of machines and confessional statement of Shri Rajesh Goyal, Director? and; (b) Whether the Hon''ble CESTAT is correct in setting aside the penalty of Rs. and; (b) Whether the Hon''ble CESTAT is correct in setting aside the penalty of Rs. 50,00,000/- by holding that the statements of concerned persons used as corroboratory evidences were not legally sustainable as cross-examination of witnesses was not allowed by the adjudicating authority whereas the assessee had not claimed that statements of said persons were factually wrong or they had any bias or malice towards the assessee and cross-examination of such persons would not have reduced the weight of evidentiary value of their statements. 5. While passing the order, the Tribunal observes as under : - "115. In view of the above discussion and findings, I pass the following order : - ORDER (I) I confirm, under Section 11A(2) of the Central Excise Act, 1944, Central Excise duty of Rs. 3,17,41,935/- (including cess and other levies as applicable) (Rupees three crore seventeen lacs forty one thousand nine hundred and thirty five only) against M/s. Goyal Tobacco Co. P. Ltd., D-21, Krishnapuri, Old Ramgarh Mod, Jaipur and order its recovery from them along with interest leviable under Section 11AB/11AA of the Act ibid. (ii) I impose, under Section 41AC of the Act ibid read with Rule 19 of the Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010, a penalty of Rs. 3,17,41,935 (Rupees three crore seventeen lacs forty one thousand nine hundred and thirty five only) on M/s. Goyal Tobacco Co. P Ltd., D-21, Krishnapuri, Old Ramgarh Mod, Jaipur. However benefit of reduced penalty of 25% as per proviso to Section 11AC, is available to them subject to the condition that Central Excise Duty amounting to Rs. 3,17,41,935/- (including cess and other levies as applicable) and the interest payable thereon is paid within thirty days from the date of communication of this order and further subject to the condition that the benefit of reduced penalty (25% of Rs. 3,17,41,935/-) shall be available if the amount of penalty so determined has also been paid within the period of thirty days from the date of communication of this order. (iii) I order, under Rule 18(1) of the Chewing Tobacco and Un-manufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010, confiscation of quantity of 72000 pouches of ''Laxmi'' brand unmanufactured chewing tobacco pouches valued at Rs. 1,44,000/-. (iii) I order, under Rule 18(1) of the Chewing Tobacco and Un-manufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010, confiscation of quantity of 72000 pouches of ''Laxmi'' brand unmanufactured chewing tobacco pouches valued at Rs. 1,44,000/-. However in terms of Section 34 of the Central Excise Act, 1944, an option is given to M/s. Goyal Tobacco Co. P. Ltd., B-21, Krishnapuri, Old Ramgarh Mod, Jaipur to redeem the same on payment of fine of Rs. 20,000/- (Rupees twenty thousand only) in lieu of confiscation. This option should be exercised within 90 days from the receipt of this order. At the time of release of the goods, Central Excise officer shall draw proper samples of the goods for future reference. (iv) I order, under Rule 25 of the Central Excise Rules, 2002, confiscation of 26 bags of Orchha Pouch of Unmanufactured Tobacco of MRP Rs. 2 each, total valued at Rs. 1,56,000/- and quantity of 4500 pouches of big Zipper of unmanufactured tobacco of MRP Rs. 4, total valued at Rs. 1800/-. However in terms of Section 34 of the Central Excise Act, 1944, an option is given to M/s. Goyal Tobacco Co. P. Ltd., B-21, Krishnapuri, Old Ramgarh Mod, Jaipur, to redeem the same on payment of fine of Rs. 25,000/- (Rupees twenty five thousand only) and Rs. 250/- (Rupees two hundred fifty only) respectively in lieu of confiscation. This option should be exercised within 90 days from the receipt of this order. On release noticee shall pay applicable central excise duty on the said goods. (v) I, under Rule 26 of the Central Excise Rules, 2002, impose a penalty of Rs. 50,00,000/- (Rs. fifty lacs only) on Sh. Rajesh Goyal, Director of M/s. Goyal Tobacco Co. P. Ltd., B-21, Krishnapuri, Old Ramgarh Mod, Jaipur." 6. Counsel for appellant has framed the following substantial questions of law :- "(a) Whether the Hon''ble CESTAT is correct in holding that confirmation of demand of duty on impugned goods was not sustainable merely on the basis of presence of machines and certain statements of laboureres and accountants whereas there were evidences in form of verification and still photography of machines and confessional statement of Shri Rajesh Goyal, Director? And; (b) Whether the Hon''ble CESTAT is correct in setting aside the demand of nonpayment of Central Excise Duty of Rs. And; (b) Whether the Hon''ble CESTAT is correct in setting aside the demand of nonpayment of Central Excise Duty of Rs. 3,17,41,935/- by holding that the statements of concerned persons used as corroboratory evidences were not legally sustainable as cross-examination of witnesses was not allowed by the adjudicating authority whereas the assessee had not claimed that statements of said persons were factually wrong or they had any bias or malice towards the assessee and cross-examination of such persons would not have reduced the weight of evidentiary value of their statements." 7. Counsel for the appellant contended that the Tribunal has seriously committed an error in holding as under : "It appeared that an attempt was made by the noticee to prove that the seized three pouch packing machine were not in working condition and could not produce the notified goods. On request of the noticee photography of the seized machines was carried out under panchnama dated 13-7-2011. It appeared from the said photographs of the seized machines as well as Panchnama to the proceedings carried out on 13-7-2011 at the time of said photograph that machines were not in dismantled or scrap condition. If they are found cleared in a factory where a packing machine is installed irrespective of the fact whether it is in use or not, or is in working condition or not. It appeared that this scheme is a self contained compounded levy scheme." 8. It is contended that Tribunal has wrongly observed in paragraphs 8, 9 and 10 which reads as under : - "Whereas statement of Shri Rakesh Kumar, lobour of M/s. Goyal Tobacco Co. P. Ltd., B-21, Krishnapuri, Old Ramgarh Mod, Jaipur was recorded on the spot on 181-2011 under Section 14 of the Central Excise Act, 1944, wherein he inter alia stated that : (i) he was working as labourer in M/s. Goyal Tobacco Co. Pvt. Ltd. for last 2 years. In the company premises he used to pack Laxmi Brand tobacco pouch on an automatic pouch packing machine. (ii) the packing work was done in guidance of Sh. Shyam Babu Goyal; (iii) that on the direction of Sh. Rajesh Kumar Goyal, the Director of Company, they used to pack the ''Laxmi'' brand tobacco pouches with the help of 3 automatic pouch packing machines installed at 269, Govind Nagar (East), Old Ramgarh Mod, Jaipur and one tobacco mixer. (ii) the packing work was done in guidance of Sh. Shyam Babu Goyal; (iii) that on the direction of Sh. Rajesh Kumar Goyal, the Director of Company, they used to pack the ''Laxmi'' brand tobacco pouches with the help of 3 automatic pouch packing machines installed at 269, Govind Nagar (East), Old Ramgarh Mod, Jaipur and one tobacco mixer. (iv) since he joined the company, he used to pack the tobacco pouch packing ''Laxmi'' brand at 269, Govind Nagar (East). Old Ramgarh Mod, Jaipur as and when required; 9. Whereas further the statement of Shri Shyam Babu Goyal, labour of M/s. Goyal Tobacco Co. P. Ltd., B- 21, Krishnapuri, Old Ramgarh Mod, Jaipur was recorded on the spot on 18-1-2011 under Section 14 of the Central Excise Act, 1944 wherein he inter alia stated that : (i) he was working as labour for packing of ''Laxmi'' brand tobacco pouches of Rs. 2/- and Rs. 4/- for last 10 years. He was allotted the tobacco and packing material by Sh. Pramod Sharma. (ii) he used to pack Rs. 4/- ''Laxmi'' brand tobacco pouches manually with other 1315 labourers. He also looked after the labour staff payment for packing which was made by Sh. Pramod Sharma. 10. Whereas statement of Shri Deepak Sharma, Production Assistant of M/s. Goyal Tobacco Co. P. Ltd., B-21, Krishnapuri, Old Ramgarh Mod, Jaipur was recorded on the spot on 18-1-2011 under Section 14 of the Central Excise Act, 1944 wherein he inter alia stated that : (i) he was Production Assistant in M/s. Goyal Tobacco Co. Pvt. Ltd., at B-21, Krishnapuri, Old Ramgarh Mod, Jaipur; (ii) quite often on the direction of Sh. Pramod Kumar Sharma, he carried the bags of ''Laxmi'' brand Tobacco Pouches manufactured at 269, Govind Nagar (East), Jaipur to B-21, Krishnapuri Mod, Jaipur. Laxmi Brand tobacco was packed by Sh.Dinesh Jogi under the guidance of Sh. Pramod Sharma. 9. Counsel for the appellant has relied upon the following decisions of the Supreme Court in Surjeet Singh Chhabra vs. Union of India and Ors. Laxmi Brand tobacco was packed by Sh.Dinesh Jogi under the guidance of Sh. Pramod Sharma. 9. Counsel for the appellant has relied upon the following decisions of the Supreme Court in Surjeet Singh Chhabra vs. Union of India and Ors. [ 1997 (89) E.L.T. 646 (S.C.)], decided by the Supreme Court on 25-10-1996 which is as under : - "It is contended by the learned counsel for the petitioner that the petitioner is entitled to cross-examine the Panch witnesses and the Seizing Officer of the goods seized in contravention of the FERA & Customs Duty Act and that the opportunity has not been given. Therefore, it is violative of natural justice. It is true that the petitioner had confessed that he purchased the gold and brought it. He admitted that he purchased the gold and converted it as a Kara. In this situation, bringing the gold without permission of the authority is in contravention of the Customs Duty Act and also FERA. When the petitioner seeks for crossexamination of witnesses who has said that the recovery was made from the petitioner necessarily an opportunity requires to be given for the cross-examination of the witnesses as regards the place at which recovery was made. Since the dispute concerns the confiscation of the jewellery, whether at conveyor belt or at the green channel, perhaps the witnesses were required to be called. But in view of confession made by him, it binds him and, therefore, in the facts and circumstances of this case the failure to give him the opportunity to cross-examine the witnesses is not violative of principle of natural justice. It is contended that the petitioner had retracted within six days from the confession. Therefore, he is entitled to crossexamine the panch witnesses before the authority takes a decision on proof of the offence. We find no force in this contention. The Custom officials are not police officers. The confession, though retracted, is an admissions and binds the petitioner. So there is no need to call panch witnesses for examination and crossexamination by the petitioner. It is contended that under the Rules jewellery is exempted articles Kara being a symbol of the religious wear by the Sikh community, it is a jewellery exempted from the Act and it cannot be confiscated. So there is no need to call panch witnesses for examination and crossexamination by the petitioner. It is contended that under the Rules jewellery is exempted articles Kara being a symbol of the religious wear by the Sikh community, it is a jewellery exempted from the Act and it cannot be confiscated. In view of the admission that he had purchased gold, converted as Kara and brought as such, he necessarily used it. Therefore, he is not entitled to benefit of exemption. Under these circumstances, we do not find any illegality in the order passed by the authority warranting interference." 10. Learned counsel has also relied upon the decision in case of Naresh J. Sukhawani vs. Union of India, 1995 SCC Supl. (4) 663 = 1996 (83) E.L.T. 258 (S.C.), which reads as under : - "It must be remembered that the statement made before the Custom officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973. Therefore, it is material piece of evidence collected by the Customs officials under Section 108 of the Customs Act. That material incriminates the petitioner including him in the contravention of the provisions of the Customs Act. The material can certainly be used to connect the petitioner in the contravention inasmuch as Mr. Dudani''s statement clearly inculpates not only himself but also the petitioner. It can, therefore, be used as substantative evidence connective petitioner with the contravention by exporting foreign currency out of India. Therefore, we do not think that there is any illegality in the order of confiscation of foreign currency and imposition of penalty. There is no ground warranting reduction of fine." 11. Learned counsel has also relied upon the decision in case of M/s. Hans Steel Rolling Mill vs. Commnr. of Central Excise, Chandigarh, Civil Appeal No. 715/2003, decided on 10-3-2011 [ 2011 (265) E.L.T. 321 (S.C.)], which reads as under : - "It is thus well settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation, etc. It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation, etc. seldom direct evidence would be available. Only the circumstantial evidence would furnish the proof. In our considered view inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstance to deduce necessary inference in proof of the facts in issue. There can be no inferences unless there are objectives facts, direct or circumstances from which to infer the other fact which it is sought to establish. In some cases the other facts can be inferred with as much practical as if they had been actually observed. In other cases, the inferences do not go beyond reasonable probability. If there are no positive proved facts, oral, documentary or circumstantial from which the inferences can be made the method of inference fails and what is left is mere speculation or conjecture. Therefore, when an inference of proof that a fact in dispute has been held established there must be some material facts or circumstances on record from which such an inference could be drawn. The standard of proof is not proof beyond reasonable doubt "but" the preponderance of probabilities tending to draw an inference that the fact must be more probable. Standard of proof cannot be put in a straight Jacket formula. No mathematical formula could be laid on degree of proof. The probative value could be gauged from facts and circumstances in a given case. The standard of proof is the same both in civil cases and domestic enquiries." 12. We have heard Shri Jain. 13. Before proceedings with the matter, this appeal is under 35G where it will be difficult for us to reverse the finding of fact arrived at by the Tribunal that witnesses in the panchnama were not examined by the Commissioner of Excise. 14. We have heard Shri Jain. 13. Before proceedings with the matter, this appeal is under 35G where it will be difficult for us to reverse the finding of fact arrived at by the Tribunal that witnesses in the panchnama were not examined by the Commissioner of Excise. 14. The fact which has been recorded by the Tribunal is a finding of fact and being last fact finding authority, it could not be disturbed. 15. In view of the finding given by the Tribunal and not cross-examination of witnesses and panch witnesses and the other witnesses who are the employee of the company, we are in complete agreement with the view taken by the Tribunal. No substantial question of law arises. 16. Therefore, both the appeals deserve to be dismissed and the same are dismissed. 17. A copy of this order be placed in other file.