9911796707
TMI Blog2012 (6) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal on the question of limitation, which was not in issue in appeal, and not giving any finding on merit of the case? (B) Whether in the facts and circumstances of the case the Tribunal has committed a substantial error of law in holding that extended period of limitation prescribed under first proviso to Section 11A of the Central Excise Act, 1944 cannot be invoked and show cause notice was required to be issued within normal period of limitation? (C) Whether in the facts and circumstances of the case the Tribunal has committed a substantial error of law in rejecting the appeal of revenue?" 2. At the outset, learned counsel for the appellant pointed out that the sole question involved in this appeal is w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of duty subsequent to 17-4-1997 which was manufactured prior to 11-4-1997 and therefore he submitted that respondents were not eligible for the benefit of concessional duty and demand for duty has been correctly confirmed by invoking extended period under Section 11A of Central Excise Act, 1944. The respondents had availed modvat credit and had texturisig machine prior to 11-4-1997 and therefore, they had deliberately evaded the duty by clearing the goods at concessional rate of duty. He also drew out attention to the fact that the Joint Commissioner in the adjudicated order has dealt with this issue, and, had confirmed the demand invoking the extended period. He also distinguished the decision of the Hon'ble Supreme Court from which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f short levy. Further the very fact that commissioner (Appeals) allowed the appeal relying upon a decision of Apex Court shows issue one of interpretation. If Commissioner (Appeals) could wrongly apply a Supreme Court's decision, can we fault the assessee. In such a case proviso to Section 11A is not clearly attracted. Further we also take note or the decision of Supreme Court in the case of Polyset Corporation [2000 (115) E.L.T. 4 (S.C.)] relied upon by the Commissioner(Appeals) does say that date of manufacture is relevant for excisability and for rate of duty, date of removal is relevant. The show cause notice was issued in 2003. Under these circumstances invocation of extended period cannot be sustained. Since the show cause notice itse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on No. 19/97 dated 11-4-1997, concessional rate of duty was fixed in respect of dyed filament yearn manufactured in a factory which does not have the facilities for producing single or draw twisting or texturised yarn. Thus the appellant which had manufactured dyed yarn prior to 11-4-1997 when it was a composite unit was not eligible for concessional rate of duty. In short view of the Tribunal would come to that there was no fraud, collusion or misstatement or suppression of facts or contravention of any of the provisions of Act or the Rules with intent to evade payment of duty. 6. In that view of the matter, we do not find any error in view of the Tribunal that extended period of limitation was not available to the department in pres ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
