9911796707
TMI Blog1997 (12) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... documentary evidences and other corroborative factors and rejecting them and also rejecting the statements recorded from persons under Section 14 of the Act, without assigning any reasons therefor. (b) There being no findings either by the adjudicating Commissioner or by the Hon ble Tribunal that the goods removed clandestinely were branded goods, whether it was legal and proper on the part of the Hon ble Tribunal in not dealing with the claim of the applicant to the benefit of small scale Notification No. 1/93, dated 28-2-1993, which was specifically raised in the appeal memorandum and in the grounds. (c) Whether the show cause notice would not be time barred under the proviso to Section 11A(1) of the Central Excise Act, 1944, having b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for referring the above question to the Honourable High Court of Orissa. 4. Countering the arguments, Shri T. Premkumar submits that in respect of the Question No. (a), there is no legal point inasmuch as the question raised relates to re-appreciation of evidence and review of the Order for which there are no powers vested in the Tribunal. 5. As regards the Question No. (b), he submits that this was never an issue before any of the authorities below. The question of applicability of Notification No. 1/93 requires the determination of facts inasmuch as the same would be applicable only when the goods clandestinely removed were not branded and also subject to the satisfaction of the other conditions. He also submits that this sort of pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order of the Tribunal requiring its reference to the High Court. 9. Relying upon the Tribunal s decision in the case of Commissioner of Customs v. Unibag Corporation reported in 1993 (64) E.L.T. 264 (Tribunal), learned SDR submits that it is a well-settled legal position that the avenue of Reference Application should not be looked upon as an instrument for making goods the omissions in the adjudication order or for bringing new legal arguments which were neither dealt with by the adjudicating authority nor even argued at the time of hearing of the appeal. 10. He, further, submits that even the Supreme Court has clearly held that when a point of law has not been agitated before the Tribunal and no finding has been given on that point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 11A and the show cause notice issued beyond the period of six months praying such date of knowledge should be held to be barred by limitation or acquisition of knowledge by the Department about the assessee s activities does not forfeit or reduce the limitation of five years when activities were suppressed by the assessee and in such cases, the show cause notice can be issued after the period of six months from the date of acquisition of knowledge and by taking the larger period of limitation. 14. Two conflicting views on this point have emerged from the various decisions of the Tribunal. In the case of M/s. Pure Drinks Pvt. Ltd. v. Collector of Central Excise, New Delhi reported in 1996 (17) RLT 375, it was held that the time limit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 131. In the same case, the Tribunal has held that the show cause notice issued for the period after the Department had acquired knowledge about the activities is barred by time. But for the period prior to that, acquisition of knowledge cannot be said to be barred by limitation even though in the said case, the Department acquired the knowledge on 8-5-1990 and issued the show cause notice on 15-5-1992. The Tribunal observed that since for the period prior to 8-5-1990, there was no knowledge to the Department about the activities, longer period of limitation would get invoked and the subsequently acquired knowledge will not reduce that period to six months. 16. The Southern Bench of the Tribunal in the case reported in 1997 (19) RLT 811, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extended time limit was not invocable from a particular date onwards. When all the facts were known to the Department, there was no suppression from that date onwards. It was held that since the show cause notice was not issued within the period of six months from the date of knowledge acquired by the Department for the earlier period, the same was barred by limitation. In another decision reported in 1997 (19) RLT 668 relied upon by the applicants in the present application, demand notice issued prior to six months from the date of knowledge of the Department was held to be time-barred by observing that extended period was not invocable in such type of cases. 20. From the above discussions, it was clear that conflicting views have been h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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