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2019 (8) TMI 1365 - HC - Central ExciseRectification of error in the order of CESTAT - Non consideration of the jurisdictional issue of limitation - Tribunal refused to rectify the error as not apparent on record - fraudulent availment of inadmissible credit by willful suppression of relevant facts - HELD THAT - There is substantial material on record to suggest that the issue of limitation as prescribed under Section 11A of the Central Excise Act was not only raised but was also argued by the assessee before the CESTAT. However, from the perusal of the impugned judgment and order, we find that there is no consideration, much less, any sufficient consideration of this crucial issue which is undoubtedly a jurisdictional issue in a matter of this nature. The records indicate that even after the impugned judgment and order was filed, the assessee immediately applied for rectification pointing out that the issue of limitation was not even adverted to by CESTAT. This rectification application was dismissed by observing that if there was no consideration of issue of jurisdiction, then the same may amount to an error apparent on the face of record and it will be open for the assessee to institute a review petition or a petition for recall of the CESTAT order. The assessee, did institute a petition for recall which was again dismissed on the ground that the scope of a recall application is very limited. In fact the record bears out that the jurisdictional issue of limitation in terms of Section 11 A was not considered by the CESTAT at all. The matter is remanded to the CESTAT for fresh adjudication in accordance with law and on merits.
Issues:
Challenge to reduction of penalty amount by CESTAT, consideration of substantial questions of law related to penalty imposition and jurisdiction, non-consideration of limitation issue by CESTAT, need for fresh adjudication by CESTAT, setting aside of CESTAT judgment, restoration of matter before CESTAT, consideration of penalty issue by CESTAT, expeditious disposal of appeals by CESTAT. Analysis: The judgment by the Bombay High Court involves appeals challenging the reduction of penalty amount by the Custom Excise and Service Tax Appellate Tribunal (CESTAT). The Excise Department contested the reduction from ?5,00,000 to ?1,00,000, while the assessee disputed the confirmation of demand and imposition of ?1,00,000 penalty. The substantial questions of law raised included the mandatory imposition of penalty under Rule 57 1(1)(iv) of Central Excise Rules and the jurisdictional issues related to duty payment, evasion, limitation periods, and principles of natural justice. The assessee argued that assessments were beyond the limitation period under Section 11A of the Central Excise Act, with no intent to evade duty, despite deviations from procedures. The Excise Department contended that the CESTAT erred in reducing the penalty due to fraudulent credit availment by willful suppression. The High Court noted that the limitation issue was raised and argued by the assessee but not considered by CESTAT, leading to rectification applications and a dismissal of a recall petition due to limited scope. The High Court found that the crucial jurisdictional issue of limitation was not addressed by CESTAT, necessitating the setting aside of the judgment and remanding the matter for fresh adjudication. Both appeals were allowed, and the CESTAT was directed to consider all contentions of the parties, including the penalty issue, within six months. The parties were requested to appear before the CESTAT with a copy of the court's order, emphasizing expeditious disposal of the appeals and leaving the costs to be borne by the parties. In conclusion, the High Court's judgment highlighted the importance of considering jurisdictional issues, such as limitation periods, in excise matters and ensuring that all relevant aspects are addressed by the appellate authorities. The need for a fresh adjudication by CESTAT and the setting aside of the previous judgment underscored the significance of procedural fairness and legal compliance in excise cases.
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