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TMI Blog2014 (2) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... could not be invoked by the Revenue under Section 11A of the Act and wherefore the claim was barred by limitation and allowed the appeal filed by the assessee by setting aside the order passed by the appellate authority and the adjudicating authority. 2. The appeal has been admitted to consider the following substantial question of law : Whether the CESTAT is justified in holding that the issuance of show cause notice dated 28-7-2004 on the basis of suppression of facts is barred by limitation when the clearance had taken place during the month of February, 2001 to August, 2001 and the finding recorded by the Tribunal that there is no suppression of facts by the assessee?" 3. Necessary material facts to answer the above said su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Central Excise, Hubli Division, Hubli to show cause as to why the said Cenvat credit of Rs. 2,61,760/- availed irregularly should not be demanded and recovered and the duty debited vide Invoice Nos. 48 and 49 both dated 23-8-2001 and differential amount of Rs. 39,472/- debited by Entry No. 187, dated 16-12-2002 in RG-23A Pt.II should not be appropriated under the proviso (1) of Section 1A of the Central Excise Act, 1944 read with Rule 12 of the Cenvat Credit Rules and duty of Rs. 56,232/- should not be demanded and recovered under the proviso to Section 11A(1) of Central Excise Act, 1944, read with Rule 8 of Central Excise Rules, 2002 proposing the preliminary actions 1 to 3. 4. In response to the said show cause notice, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... propriate rate on the demand ordered against 1 and 4 above under Section 11AB read with Rule 12 of Cenvat Credit Rules, 2002. 6. I impose penalty of Rs. 65,232/- under Section 11AC of the Central Excise Act, 1944 for the demand ordered against demand 1 and 4 above. 7. I impose a penalty of Rs. 2,000/- under Rule 25 of Central Excise Rules, 1944." 5. The said order was taken in Appeal No. 250/2005 before the Commissioner of Central Excise (Appeals), Mangalore in Appeal No. 72/2005(BM)/3079 and the appellate authority confirmed the order passed by the adjudicating authority and being aggrieved by the same, assessee has preferred an appeal in Appeal No. Excise/1091/2005 before the Customs, Excise and Service Tax Appellate Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 11-8-2011 for final hearing and the counsel appearing for the respondent is not present. 7. Learned counsel appearing for the appellant-Revenue submitted that there was suppression of facts on which there is concurrent finding by the adjudicating and appellate authority. The material on record would clearly show that though no manufacturing activity was involved in refurbishing and modification of the washing machines, Cenvat credit was availed and though excess duty has been collected the same is suppressed. Raised excess duty has been credited and wherefore, the Tribunal was not justified in setting aside the concurrent finding by holding that the invoking of Section 11A is barred by time and therefore the order passed by the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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