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TMI Blog2010 (5) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... y of notification. Held that- impugned order of Tribunal is sustainable. - 1361 of 2009 with 1364 of 2009 - - - Dated:- 6-5-2010 - D.A. Mehta and H.N. Devani, JJ. REPRESENTED BY: Shri R.J. Oza, for the Appellant. None, for the Respondent. (Order per: D.A. Mehta, J. (Common oral)]. - Both these appeals are taken up for hearing together as they arise out of a consolidated order of Tribunal dated 05th January, 2009. Appellant Revenue has proposed the following two questions in both the tax appeals:- (A) Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law in holding that there was no malafide intention on the part of the assessee to avail inadmissible credit and, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the order-in-original to point out how there was suppression of facts. This submission was made in the context of the finding recorded by the Tribunal that extended period of limitation was not available to revenue considering that there were different views prevalent on the issue of availability of credit during the relevant period. Learned counsel emphasized the fact that but for the investigation carried out by revenue, such wrong availment of credit would not have come to light. Attention was also invited to paragraph nos.24 and 25 to submit that for invoking larger period there was clear suppression of facts on part of the assessee and assessee having pressed into service Tribunal's decision in case of M/s. Polyhose at the time of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs including CVD was paid by the assessee by debiting DEPB passbook." Therefore, it is apparent that for the period between April, 2003 to April, 2005, the claim made by the assessee was based on a Notification and the assessee was entitled to hold a bonafide belief as to entitlement. Admittedly before the larger bench judgment in case of Essar Steel Limited was delivered by the Tribunal on 16th August, 2004, there was an order of the Tribunal in the case of Polyhose India Private Limited as reported in 2003 (152) E.L.T. 361 in favour of the assessee. This fact has been accepted even by the adjudicating authority as noted in paragraph no.20 of the order-in-original. 4. In the aforesaid factual matrix, it is not possible to state t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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