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TMI Blog2010 (12) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... ral)]. - In this appeal under Section 35G of the Central Excise Act, 1944 [the Act], the appellant, Commissioner of Central Excise Customs, Daman has challenged order dated 5th February 2009 made by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad, [the Tribunal] proposing the following three questions : 1. Whether in the facts and circumstances of the case the Tribunal has committed a substantial error of law in allowing appeal of the respondent by holding that the demand raised for the period April 2000 to March 2003 by show cause notice issued in April 2004 is barred by limitation, except for the period which falls within limitation? 2. Whether in the facts and circumstances of the case the Tribunal has committed a substantial error of law in applying ratio of the decision in case of M/s. Mafatlal Industries [2009 (245) E.L.T. 265 (Tribunal)] in holding that demand made in the subject show cause notice is barred by limitation? 3. Whether in the facts and circumstances of the case the Department has not validly invoked extended period of limitation in issuing show cause notice to the respondent? 2. The respondent-assessee is enga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ier decision in the case of M/s. Mafatlal Industries held that the demand raised for the period from April 2000 to March 2003, would be barred by limitation. 4. Assailing the impugned order of the Tribunal, Mr. R.J. Oza, learned Senior Standing Counsel appearing on behalf of the appellant submitted that the Tribunal had merely applied the ratio of the decision in the case of M/s. Mafatlal Industries without adverting to the facts of the present case as to how the said decision was applicable in the present case. Inviting attention to the order made by the Adjudicating Authority, it was pointed out that the Adjudicating Authority has recorded specific findings as regards suppression, based on which the Adjudicating Authority has invoked the extended period of limitation. It was submitted that the Tribunal has not recorded any reasons as to why the findings recorded by the Adjudicating Authority as regards suppression are not justified; but by merely reproducing the relevant paragraph from the decision in the case of M/s. Mafatlal Industries has held that in the facts of the present case also, the show cause notice is barred by limitation. The learned counsel submitted that suppres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi-III, 2009 (240) E.L.T. 641 (S.C.), wherein the Court on merits held against the assessee. However before concluding the Court observed thus : 47. Before concluding, it may be clarified that on account of repeated amendments in the CENVAT Credit Rules, huge litigation in the country stands generated. In the circumstances, we are of the view that penalty is not leviable on the appellant/assessee, particularly when in a large number of other cases, on account of conflict of views expressed by the various Tribunals/High Court, the assessees have also succeeded. Hence, although Maruti Suzuki Ltd. (the appellant) has failed in their civil appeals the Department will not impose penalty. 6. Referring to various other decisions of the Supreme Court, it was pointed out that in cases where the legal position was not settled and there were decisions in favour of the assessee, the Court had taken a view that penalty should not be imposed and that the extended period of limitation should not be invoked. 7. On merits, Mr. Nainavati submitted that the fact that the assessee was availing credit in respect of LDO; the fact that steam is one of the items manufactured by the respondent on wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of the Act or the rules made thereunder with intent to evade payment of duty. In the present case, the revenue has alleged suppression on the part of the respondent-assessee. As to whether or not there is any suppression of facts on the part of the respondent is always a question of fact. Therefore, when such a plea was raised before the Tribunal, before concluding that extended period of limitation cannot be invoked the Tribunal was required to record findings of fact as to whether or not there was any suppression on the part of the assessee. However, a perusal of the impugned order of the Tribunal indicates that the Tribunal has recorded no such findings of facts. 11. The question that arises for consideration is whether merely because the Tribunal, which is the last fact finding authority has failed to record such findings, the matter is required to be remitted to the Tribunal for the purpose of deciding the said issue afresh giving rise to another round of litigation? 12. In this regard, a perusal of the order made by the Adjudicating Authority indicates that before the Adjudicating Authority it was the case of the assessee that steam was not its final product. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods and that in all the said rules, inputs intended to be used as fuel were excluded. Hence, it was not required to maintain separate accounts in respect of the LDO used by it as fuel in the manufacture of exempted and dutiable products. The findings regarding suppression recorded by the Adjudicating Authority are mainly based on the fact that the assessee did not maintain separate records and that the assessee had not declared either in the 173B declaration or in its forwarding letter that it had utilized any input for manufacture of steam on which cenvat credit had been availed. This finding clearly overlooks the case of the assessee that inputs used as fuel were excluded from the purview of the said Rules. In the circumstances, the evidence on record clearly does not substantiate the findings of the Adjudicating Authority as regards suppression. Besides, as rightly contended by the learned advocate on behalf of the assessee, at the relevant time, the legal position in this regard was not clear and there were various decisions of the Tribunal and different High Courts in favour of the assessee, hence, the assessee was entitled to entertain a bona fide belief that it was not re ..... 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