JUDGMENT :

Alok Mathur, J.

1. Heard Sri Pradeep Agarwal, learned counsel for the appellant and Sri Dipak Seth, learned counsel appearing for the respondents.

2. The present Central Excise Appeal has been preferred against the judgment and order passed by Central Excise and Service Tax Appellate Tribunal, Allahabad on 17/10/2017 by which the appeal preferred by the appellant has been dismissed.

3. Sri. Pradeep Agrawal, counsel for the appellant in Appeal No. 17 of 2018 has submitted that the appellant is a registered dealer under the Central Excise Act, 1944 and is engaged in manufacture of MS Ingots falling under tariff item number 72061090 of the Central Excise Tariff Act, 1985, while the appellant in Appeal No. 18 of 2018 is the Director of the Company, and both the appeals were decided by the common order by the CESTAT, and therefore have been heard together and are being disposed of by this common order.

4. The Additional Commissioner (ADJ), Central Excise & Service Tax, Lucknow while passing the order dated 2.1.2015 in original, recorded the fact that a team of officers of the Central Excise, Lucknow visited the manufacturing premises of the factory on 30/11/2011 to check the record in stock of excisable goods available in the factory. After tallying the stock with the records, some shortage of the stock of MS Ingots was discovered. Statement of Sri Lal Padamkar Singh, the Director, was also recorded and on the basis of available material it was found that the appellant company had indulged in receipt of uncounted raw material i.e., scrap and deliberately suppressed the production of finished goods by resorting to issuing of false and forged invoices in addition to the originals, and he therefore, confirmed total demand of Rs. 2,00,449/- on shortage found in stock of MS ingots, demand of Central Excise Duty (Including Education Cess, Secondary and Higher Education Cess) to the tune of Rs. 36,46,346/-, and a penalty of Rs. 38,46,395/-, and imposed a further penalty of Rs. 38,46,395/- on Sri Lal Padamkar Singh, director.

5. The appellant aggrieved by the aforesaid order preferred appeals under Section 35 of the Central Excise Act, 1944 before the Commissioner of Appeals which were dismissed by common order dated 14/10/2015 against which a second appeals were preferred before the CESTAT which were also dismissed by a common order impugned before us in the present appeals.

6. The appeals were admitted on 04/07/2019 on the following questions of law, namely:

"1. Whether the learned Tribunal was justified in not disposing the appeal on merits and not adjudicating the grounds of appeal raised in the memo of appeal despite the fact that the Tribunal being the last fact finding authority under the Act.

2. Whether the learned Tribunal was justified in not adjudicating the issues/submissions and no findings have been recorded for levy of penalty on the Director of the Company in the impugned order."

7. It has been submitted by the learned counsel of the appellant that the submissions before the CESTAT were duly recorded in the impugned judgment in paragraph 3 which is reproduced here under :

(i) The weight of MS ingots were determined by eye estimation and not the actual weighment and, therefore the demand of duty of shortage of ingots is not sustainable.

(ii) It is admitted in para 6 of the show-cause notice that invoice No. 31 dated 30.11.2011 issued from the forged invoice book was issued to M/s. United Steel Industries for removal of 32.860 MT of MS Ingots but in follow-up action conducted on 1.12.2011 no discrepancy was found.

(iii) The Director of the Appellant never admitted removal of MS Ingots without payment of duty and that the Department has not come out with any evidence to prove allegation.

(iv) As reflected in para 6 and 15 of show-cause notice both M/s. United Steel Industries and M/s. Kumar Industries has categorically denied having received any goods other than goods received through the invoice produced by them.

8. The Tribunal