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TMI Blog2005 (10) TMI 481X X X X Extracts X X X X X X X X Extracts X X X X ..... JDR, Shri Nair appealing for the revenue. Nobody represented the respondent. 2. Respondent are engaged in the manufacture of various products classified under Chapter 32 of Central Excise Traffic Act. They filed a monthly return for May 98 indicating some balance of finished goods and also some goods received by them for repairing and reconditioning under Rule 173H. Admittedly, the said return was the last return filed by them as they had stopped their manufacturing activities from March 98 onwards on account of heavy losses and workers strike. The appellant vide their letter dated 25-1-2001 also intimated the revenue that as they were unable to pay the wages to their workers, it seems that there was theft in the factory and goods were no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Rules. They should have thereafter, proceeded to issue a show cause notice for recovery of the duty liabilities found payable by the appellant. Accordingly, it was not open to the authorities to allege clandestine removal of the disputed goods, some of which were claimed to be duty paid goods received in terms of Rule 173H of Central Excise Rules to apply the extended period of limitation for this recovery without establishing intention to evade duties. Appellant had claimed that their goods were not available due to the unusual happenings within their factory after March 1998. Therefore even if the liabilities for payment of duties on the disputed goods are in principle to be accepted, it was not open to the authorities of apply t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts contained in the impugned order and therefore, the demand for duties is barred by limitation of time contained in Section 11A of Central Excise Act. Also, when no duty liability can be sustained on ground of applicability of limitation, both the charge of recovery of interest under Section 11AB, and also penalization under Section 11AC of Central Excise Act are not Sustainable also for the reason that the onus of providing intention to evade duty, or establishing clandestine removal, is not discharged. Impugned order is therefore, set aside. 4. Revenue has challenged the above order on the ground that date of intimation of loss is not the relevant date in Section 11A and has relied upon the larger bench decision of the Tribunal in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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