2019 (2) TMI 82 - HC - Central Excise

Penalty u/s 11AC of CEA - Time Limitation - whether the Tribunal had erred in holding that the demand is beyond the period of one year from the relevant date and is time barred? - Held that - If the assessee is not dissatisfied with the findings recorded by the Tribunal on first four issues, he cannot be allowed to say that the department should be required to file appeal even against the part of the judgment of the Tribunal before the Supreme Court particularly when the department itself has accepted finality of that part of the judgment by which the matter has been remanded back to the Original Adjudicating Authority for its fresh findings - The question of limitation and demand being time barred will have to be decided independently. The department has been able to make out a case for recall of order dated 11.04.2018 passed by this Court - The application is allowed.

Summary

Issues:
1. Recall of order dated 11.04.2018 passed by the Court.
2. Appeal maintainability before the Supreme Court.
3. Issues identified by the Tribunal.
4. Department's right to appeal against Tribunal's judgment.

Recall of Order:
The applicant sought the recall of the order dated 11.04.2018, where the appeal by the Commissioner of Central Excise was disposed of, stating that the appeal would lie before the Supreme Court based on Section 35G(1) of the Central Excise Act. The applicant argued that the Tribunal erred in holding the demand as time-barred and dropping the penalty under Section 11AC of the Act. The Court considered the judgment of the Delhi High Court in similar cases to support its decision.

Appeal Maintainability:
The applicant contended that the appeal should have been maintainable before the Supreme Court based on a previous Delhi High Court judgment related to the determination of duty rates. However, the respondent argued that only specific issues related to duty rates and goods value were favorable to the assessee, and the department should appeal against the entire judgment if aggrieved.

Tribunal's Identified Issues:
The Tribunal identified five issues, including the classification of goods and eligibility for exemption under specific notifications. While some issues were decided against the revenue, the Court noted that the department did not appeal against those decisions. The Court highlighted that the question of limitation and demand being time-barred needed separate consideration.

Department's Right to Appeal:
The Court emphasized that if the assessee accepted the Tribunal's findings on certain issues, the department could not be compelled to appeal against those parts, especially when the matter was remanded back for fresh adjudication. The Court concluded that the department had established grounds for the recall of the previous order, allowing the application and restoring the appeal to its original status.