2009 (10) TMI 805 - AT - Central Excise

Bar of limitation - recovery of interest amount payable in terms of Sub-section (2B) of Section 11A and 11AB of Central Excise Act 1944 in relation to the differential amount of duty paid consequent to the issuance of supplementary invoices during the period from Sept.05 to July.06 - Held that - The point of limitation is never a pure question of law. It is always a mixed question of law and facts. In order to decide as to whether a particular action is barred by law of limitation it is always necessary to consider the facts of the case - it would be appropriate to remand the matter to the Commissioner while permitting the appellants to raise the point of bar of limitation and directing the Commissioner to grant opportunity to the appellants as well as to the Department an opportunity to prove the rival contentions in relation to such issue and thereupon to decide the matter afresh in relation to the said point - appeal allowed in part.

Summary

Issues:
Bar of limitation for recovery of interest amount payable in terms of Sub-section (2B) of Section 11A and 11AB of Central Excise Act, 1944 in relation to the differential amount of duty paid consequent to the issuance of supplementary invoices during the period from Sept.05 to July'06.

Analysis:
The appellant contended that the Department was aware of the interest liability on differential duty before the show cause notice, challenging the invocation of the extended limitation period. Referring to the ruling in CCE, Pune v. SKF India Ltd., it was argued that the limitation period for interest recovery should align with the principal amount's limitation period. The appellant claimed that the demand was time-barred due to the period preceding one year from the show cause notice's issuance.

On the contrary, the respondent argued that the limitation issue was not raised earlier and was not part of the appeal memo. They emphasized that the show cause notice was based on information provided by the appellant, negating any limitation concerns. The respondent opposed interference with the lower authorities' decision.

The Tribunal highlighted that the limitation issue involves both legal and factual considerations. Quoting Warner Hindustan Ltd. v. Collector of Central Excise, Hyderabad, the Tribunal emphasized that new factual claims cannot be introduced at the appeal stage. Consequently, the Tribunal directed the matter to the Commissioner for a detailed examination of the limitation aspect, allowing both parties to present their arguments and evidence.

The Tribunal partially allowed the appeal, deeming the lower order deficient in addressing the limitation issue. The findings on the case were upheld, but the matter of limitation was remanded to the Commissioner for a fresh determination in line with legal provisions. The Tribunal stressed the need for a comprehensive review of the limitation point and instructed the Commissioner to provide a fair opportunity for both parties to substantiate their positions before reaching a final decision.