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TMI Blog2012 (10) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... light of the aforesaid facts none of the other conditions prescribed in the Proviso exists in this case to extend the period of limitation of 5 years - Tribunal was justified in setting aside the order passed by the appellate authority and in restoring the order passed by the original authority – in favor of assessee - C.E.A. No. 17 of 2011 - - - Dated:- 11-8-2011 - N. Kumar and Ravi Malimath, JJ. REPRESENTED BY : Shri K.N. Mohan, Advocate, for the Appellant. [Judgment per : N. Kumar, J.]. This appeal is by the Revenue challenging the order passed by the Tribunal allowing the appeal filed by the assessee solely on the ground that the very initiation of proceedings was barred by law of limitation. 2. The assessee is a man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto the merits of the matter, set aside the order impugned in the appeal solely on the ground that the initiation of proceedings is barred by time. Aggrieved by the said order, the present appeal is filed. 3. The learned counsel appearing for the Revenue submits that the defect was noticed in September, 2004, and the proceedings initiated on 25-9-2007 was well within the period of 5 years and therefore the Tribunal was not justified in setting aside the order on the ground of limitation. Section 11A on which reliance is placed reads as under :- 11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. - (1) When any duty of excise has not been levied or paid or has been short-levied or short-p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r contravention of any of the provisions of this Act or the Rules made thereunder with an intent to evade payment of duty by such person or his agent then 5 years is the period prescribed for initiating proceedings. 4. As is clear from the material on record, the returns were filed promptly. In the returns it is clearly mentioned that they availed credit under the aforesaid rules. The audit partly accepted the same. It is only in the second audit that they noticed the mistake and initiated proceedings. Therefore, in the light of the aforesaid facts none of the other conditions prescribed in the Proviso exists in this case to extend the period of limitation of 5 years. It is in this background the Tribunal was justified in setting aside th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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