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TMI Blog2011 (3) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to reverse the findings of the Commissioner. From the recorded portion of the Commissioner, it can be seen that he was of the opinion that assessee had clandestinely removed certain goods. Tribunal in our opinion did not address to this aspect of the matter and proceeded on question of valuation of goods and duty liability which question was not germane. - Matter remanded back to tribunal - 618 of 2009 - - - Dated:- 23-3-2011 - Akil Kureshi and Sonia Gokani, JJ. REPRESENTED BY : Shri R.J. Oza, Counsel, for the Appellant. [Order per : Akil Kureshi, J. (Oral)]. Revenue is in appeal challenging judgment of the Tribunal dated 1-10-2008 [2009 (242) E.L.T. 254 (Tri.-Ahmd.)] raising following questions for our consideration w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Revenue for final disposal of appeal. 3. Issue pertains to extended period of limitation under Section 11A of the Central Excise Act. Assessee was issued show cause notice alleging clandestine removal of certain goods to its sister concern demanding duty, interest and payment. But assessee opposed show cause notice contending that he had not suppressed any material and that the extended period should not to be invoked. Commissioner of Central Excise in his order in original dated 24-9-2004 rejected the contention of the assessee making following observations : It can be inferred from perusal of other two judgments in the case of M/s. Jyoti Ltd. and M/s. India Foils Ltd. that revenue neutral situation comes even in relation to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or not is a question to be decided on facts of each case and has nothing to do with available credit or a party having benefit of Modvat scheme. Furthermore, the matter involved in all the cases were of valuation of excisable goods or short payment of duty, whereas in the present appeal the matter is of non-payment of duty in respect of goods cleared without following the provisions central excise of Act Rules. The appellant submission that they themselves have informed the department, does not dilute the offence, since the intimation has been sent to the department in the year 2000, whereas they cleared the goods since year 1997. It cannot be presumed that they were not aware that they were required to clear the goods under C.Ex. invoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the notice of the officer of the department, one year of period of limitation would apply from date of such knowledge was not approved. 6. In the present case though ratio laid down in case of Neminath Fabrics Pvt. Ltd. (supra) may not be applicable directly, nevertheless, we find that the tribunal reversed findings of the Commissioner holding that there was misrepresentation and clandestine removal by the assessee, without any discussion at all. Simply by stating that facts were within the knowledge of the Revenue and if there was any dispute about correct assessable value, same should have been raised within period of limitation in our opinion would not be sufficient to reverse the findings of the Commissioner. From the recorded po ..... X X X X Extracts X X X X X X X X Extracts X X X X
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