JUDGMENT : Bhargav D. Karia, J. 1. Heard learned advocate Mr.Paritosh Gupta for M/s.Trivedi & Gupta for the appellant and learned Senior Standing Counsel Mr.Chirayu A.Mehta for the respondent no.1. 2. Being aggrieved by the order dated 09.05.2005 passed by the Custom Excise and Service Tax Tribunal, West Zonal Bench, Mumbai (for short ‘CESTAT’) the appellant assessee has preferred this appeal under Section 35G of the Central Excise Act, 1944. 3. This Court (CORAM: Hon’ble the Chief Justice Y.N.Meena and Hon’ble Mr.Justice Akil Kureshi) by order dated 06.09.2007 admitted the appeal in terms of following questions: “The appeal is admitted in terms of the following question :- “Whether the Tribunal is correct in holding that duty on 17943 kgs. of billets seized on 27.3.1999 is payable though the evidence recording quantity of goods and consumption thereof as well as s clearance of final product on payment of duty was available and placed n record?” Issue notice to the other side. Paper book will be filed within three months. List the appeal for final hearing after three months.” 4. The brief facts of the case are that the factory premises of the appellant was visited by the Officers of the Preventive Wing of the Central Excise Department on 04.07.2000 when verification of the stock of billets lying within the factory premises was taken and a verification thereof was done with the RG-1 Register. According to the panchnama there was a shortage of billets which was an intermediate product to the tune of 27190.5 kg. 4.1. on 05.07.2000, when the statement of the authorized person of the appellant was recorded, replies to the queries raised by the officers were not recorded properly as a result of which retraction of the said statement was done by the appellant. Thereafter the authorized person of the appellant once again made an affidavit on 07.07.2000 before the notary public verifying that the verification of stock of cut billets lying in the factory premises of the appellant was not done properly. 4.2. It is also coming out from the record that during the seizure of the billets done earlier on 27.03.1999, 17943 kgs of billets were placed under seizure which were again handed over back to the appellant-assessee to be kept in safe custody. 4.2. It is also coming out from the record that during the seizure of the billets done earlier on 27.03.1999, 17943 kgs of billets were placed under seizure which were again handed over back to the appellant-assessee to be kept in safe custody. However, the appellant without permission of the authority utilized such billets but the same were included in the total stock of goods being 37,051.500 kg mentioned in the RG-1 Register. 4.3. The show-cause notice was issued by the Department and the appellant was called upon the show-cause as to why the excise duty of Rs.5,83,312/- should not be recovered under the provisions of Rule 9 of the Central Excise Rules, 1944 read with proviso 11A(1) of the Act. 4.4. The appellant submitted the reply and after considering the written submissions of the appellant, the show-cause notice was adjudicated by order-in-original dated 28.08.2003. The Adjudicating Authority confirmed the levy of excise duty to the tune of Rs.5,87,312/- along with demand of interest and imposition of equal amount of penalty. 4.5. Being aggrieved, the appellant preferred an appeal before the Commissioner of Central Excise Appeals, Rajkot, who vide order in appeal dated 18.05.2004 rejected the appeal filed by the appellant. 4.6. The appellant therefore preferred an appeal before CESTAT being Appeal No.E/2159 of 2004. 4.7. The CESTAT after considering the submissions made by both the sides, partly allowed the appeal by setting aside the order in original and order in appeal in respect of the quantity of billets being 9247.5 kg and confirmed the duty and penalty imposed upon the appellant in respect of 17943 kg of billets which were seized on 27.03.1999. 5. Learned advocate Mr.Paritosh Gupta appearing for the appellant submitted that subsequent to the inspection and panchnama dated 04.07.2000, the Commissioner of Appeals has quashed the seizure order of 27.03.1999 and it was therefore submitted that the Tribunal could not have confirmed the addition in respect of 17943 kg of billets. 5.1. Learned advocate Mr.Gupta invited the attention of the Court to the findings of the Tribunal recorded in para no.6 in respect of the addition confirmed in respect of 17943 kg of billets which reads as under: “6. After considering the submissions made by both sides, I find that the appellants have conceded the utilization of earlier seized billets by the departments, which were kept with them for safe custody under Supratnama. After considering the submissions made by both sides, I find that the appellants have conceded the utilization of earlier seized billets by the departments, which were kept with them for safe custody under Supratnama. Ld Advocate agrees that this action was not justified on their part but submits that the same was without any intention to evade duly and was on account of the financial difficulty being faced by them. However, I do not find any merits in the above contention of the appellants. Shri Kadecha in his statement given on the spot has very clearly agreed that the quantity of billets seized on 27/03/99 and handed over to them have already been consumed in their factory for manufacture of excisable finished goods for which no entry was made in RG-1 register. The goods having been handed over to the appellants after the seizure, they were under a legal obligation to produce the same as an when called for by the department. Non availability of the said goods on the date of subsequent visit of the officers in the factory, read along with the statement of their authorized representative fully establishes that the goods have been consumed by them for manufacture of the final products. The appellants have also not been able to produce any evidence on record to show that such final products manufactured by them out of the seized billets was recorded in then RG-1 register or which cleared under the cover of Central Excise documents on payment of duly. As such, I am of the view that the duty is required to be confirmed against the appellants in respect of the said quantity of the seized billets and the appellants are also liable to penalty for the contravention committed by them as discussed.” 5.2. Thereafter learned advocate Mr.Gupta invited the attention of the finding of the Tribunal in respect of the relief granted by the Tribunal in respect of 9247.500 kg of billets recorded as under: “7. However, as regards the balance quantity. I agree with the Ld. Advocate that there is no categorical acceptance by Shri Kadecha in his first statement given on the spot. They have also contested before the Commissioner that the billets under process were not taken into account while conducting the stock taking. However, as regards the balance quantity. I agree with the Ld. Advocate that there is no categorical acceptance by Shri Kadecha in his first statement given on the spot. They have also contested before the Commissioner that the billets under process were not taken into account while conducting the stock taking. The DR's plea that the factory was visited subsequently, but the officers were not allotted to enter has been effectively rebutted by the Ld. Advocate when he submitted that the subsequent day of visit of the officers was a public holiday and nobody was present in the factory. The officers were also not in uniform and in these circumstances the Chowkidar dic. not allow them to enter the factory. He has further submitted that the officers could have visited the factory and verified the stock on the next working day. but they failed to do so. The ratio of the various decisions that mere shortage of the materials by itself is not a sufficient ground to establish the charge of clandestine removal of the goods applies in the present case. It is not only the shortage of the raw materials but the appellant's protest to the Commissioner immediately after the visit of the officer that the cut billets and the under process billets have not been taken into account which help me to make a view that there was no actual shortage of billets and the same was pseudo. There is no other evidence on record produced by the revenue to show that the billets are being used in the manufacturing of final products cleared clandestinely. In these circumstances I extend the benefit of doubt to the appellants in respect of the balance quantity of billets found short.” 5.3. Referring to the above findings it was submitted that in the same case, the CESTAT has committed an error of giving a contradictory finding with regard to the alleged shortage of 17943 kg of billets and granted relief on the 9247.500 kgs of billets on the same though the shortage was found at the same time. Referring to the above findings it was submitted that in the same case, the CESTAT has committed an error of giving a contradictory finding with regard to the alleged shortage of 17943 kg of billets and granted relief on the 9247.500 kgs of billets on the same though the shortage was found at the same time. It was therefore submitted that on the same reasoning given for granting relief by the Tribunal with regard to the shortage of 9247.500 kgs of billets, the same would extend to the alleged shortage of 17943 kg of billets which was seized on 27.03.1999 and only because the appellant has made a statement initially that such billets were utilized without permission, the Tribunal could not have confirmed the demand of duty on the said amount of quantity of billets. 5.4. It was further submitted that the excise duty, if any, payable by the appellant would be on the billets and not on the final products of the brass rods which were produced by the appellant by extrusion from the billets. 5.5. It was therefore submitted that the impugned order is required to be quashed and set aside, confirming the interest and penalty on the quantity of 17,943 kg of billets by answering the question of law in favour of the appellant assessee. 6. On the other hand, learned Senior Standing Counsel Mr.Chirayu Mehta submitted that the CESTAT has rightly confirmed the Excise duty and demand in view of the fact that, it is admitted by the appellant that the quantity of 17943 kg of billets were utilized which were in the custody of the appellant without permission and therefore the CESTAT was justified in confirming the duty. 6.1. It was further submitted that the CESTAT has arrived at a finding of fact to the effect that the statement of the authorized representative establishes that the goods have been consumed by the appellant for manufacture of the final products and therefore the Tribunal confirmed the excise duty and in view of the concurrent findings of the facts arrived at by the both the authorities, no interference may be called for. 7. 7. Considering the above submissions and in view of the concurrent findings of fact recorded by the Tribunal in respect of the 17,943 kgs of billets seized on 27.03.1999 by the respondent Department, it is not in dispute that the said billets were utilized by the appellant assessee without permission from the Competent Officer and could not have been produced at the time of inspection carried out on 04.07.2000. The CESTAT was therefore justified in holding that as per the material available on record and in absence of any evidence produced by the appellant to show that such final products manufactured by them out of the seized billets was recorded in RG-1 Register for the same was cleared under the cover of Central Excise, on payment of duty, the CESTAT was justified in confirming the demand, so far as the 17,943 kgs of billets found which were supposed to be kept in the custody of the appellant at the relevant time. 8. The contention raised on behalf of the appellant that subsequent order of the Commissioner of Appeals with regard to setting aside the order of seizure would relieve the appellant from keeping the stock of 17,943 kg of billets in safe custody is also not tenable as such order passed by the Commissioner was after the inspection dated 04.07.2000. 9. With regard to the contention raised by the appellant that the CESTAT has committed an error by not adopting the same reasonings which were given for granting relief in respect of 9247.5 kg of billets which were alleged to have been found shortage on the ground as recorded in para no.7 of the Impugned Order passed by the CESTAT, it is not tenable in view of the fact that the CESTAT has distinguished shortage of 17,943 kg of billets on the ground that the same was seized on 27.03.1999 whereas the shortage of alleged 92475 kg of billets was set aside only because in view of the finding arrived at by the CESTAT that there was no actual shortage of billets and that same was only pseudo and there was no evidence on record produced by the revenue to show that the billets are being used in the manufacture of final products clandestine. 10. 10. Thus the CESTAT has given categorical finding of the fact in respect of the 17,943 kg of billets which clearly shows that the appellant has failed to produce any evidence with regard to the production of the final products out of usage of such quantity of billets. 11. In view of such concurrent finding of the facts recorded by the three authorities, in our opinion, the question of law is answered against the assessee and in favour of the revenue as there is no infirmity in the impugned order passed by the Tribunal. The appeal therefore being devoid of any merits is accordingly dismissed.