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TMI Blog2013 (5) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that this issue cannot be reopened in the second round of litigation. Demand beyond five years - held that:- from the adjudication order that the demand has been raised with effect from 06.11.1986 even though 86-87 had been mentioned. That being the position, we are of the considered opinion that there is no illegality in the demand as confirmed by the Tribunal as it falls well within the period of 5 years from the date a show cause notice issued to the applicant. Suppression, concealment or fraud or mis-statement - held that:- From the order of the Tribunal we do not find any such plea having been raised. The only plea raised before the Tribunal was that the demand beyond the period of five years under section 11 A of the Act co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that the Commissioner had failed to give specific notice and opportunity of hearing as envisaged under the Act and Rules before passing the order impugned in the Appeal before the CEGAT? Briefly stated that facts giving rise to the present reference are as follows:- The Central Excise officers searched the factory premises of M/s. Triveni Rubbers and M/s Winner Rubbers P. Ltd. on 23.1.1991 on the basis of intelligence that these two units were manufacturing rubber belting of vulcanized rubber, having rubber compound more than 25% falling under sub-Heading No. 41010.90 of the Schedule to the Central Excise Tariff Act. Subsequently, a show cause notice dated 6.11.1991 was issued to M/s Triveni Rubbers for demanding Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were for returned goods as it was not mentioned on the Challan that these were used for returned goods. Both the Appellants and the Revenue filed the appeals against the said Adjudication order before the Appellate Tribunal. The Tribunal vide Final order No. 25-26/2001-C dated 22.2.2002 held that the Revenue had not been successful in substantiating their contention that the Appellants had not manufactured rubber belting containing less than 25% of rubber content by weight. The Tribunal also held that the benefit of S.S.I. exemption would be available to them from the date they applied for the registration as Small Scale. Industries with the Directorate of Industries and not from the date of granting registration to them. The Tribunal al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he investigation in the show cause notice. The Commissioner has also observed that in reply to the show cause notice the appellants had admitted the value of clearance as follows: 1986-87 Rs.27,78,383.80 1987-88 ₹ 49,14,607.26 1988-89 ₹ 52,56,013.28 1989-90 Rs.13,69,874.68 1990-91 NIL (Clearance of returned goods only which are already included in past clearances as reflected in diaries) The Commissioner has also mentioned in Para 10 of the Adjudication Order dated 15.4.02 that the learned Advocate, who had appeared on behalf of the Appellants, had forcefully ple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to them from the date they applied for registration as S.S.I. with the Directorate of Industries i.e. 31.7.87 in view of the specific finding of the Tribunal in the remand order which had not been challenged by them. The Tribunal, however, set aside the demand of interest under Section11 AB of the Central Excise Act. We have heard Shri Pankaj Bhatia, learned counsel assisted by Shri Gopal Verma on behalf of the applicant and Shri S.P. Keswarwani, learned senior standing counsel for the Revenue. Shri Bhatia, learned counsel for the applicant submitted that the Tribunal was not justified in holding that as the earlier order dated 22.2.2001 passed by the Tribunal had become final and had not been challenged the issue relating to S.S.I. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod of 5 years from the date a show cause notice issued to the applicant. Shri Bhatia then submitted that there was no suppression, concealment or fraud or mis-statement and therefore, the extended period of limitation as provided under section 11 A was not available and the demand is therefore, wholly illegal. From the order of the Tribunal we do not find any such plea having been raised. The only plea raised before the Tribunal was that the demand beyond the period of five years under section 11 A of the Act could not have been raised. That being the position, we are of the considered opinion that the order passed by the Tribunal does not suffer from any legal infirmity. The questions referred to us are answered in favour of the R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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