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TMI Blog2015 (9) TMI 521X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue itself and in the first instance. In the circumstances, we do not think that the Assessee can derive any benefit by mere filing of the classification lists or any endorsement thereon. Here the issue was whether the audit party was given an opportunity to inspect the materials and which came to be claimed as evidence of dutiable inputs. It is the Assessee who had relied upon such specific audit inspection. The matter had to be therefore decided in the light of the audit party inspection and the finding in the report thereof. Such being the nature of the controversy, no assistance can be derived from the authorities and rulings even if they are rendered by the Hon'ble Supreme Court in the case of O. K. Play India Ltd. [2005 (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horities. There, the finding is that the period available under section 11A (4) of the Central Excise Act, 1944 could have been invoked. That was because the Appellant is guilty of suppression of material and relevant facts with an intent to evade payment of duty. Mr. Shah would submit that if the point of limitation involves jurisdiction of the authorities, then, the findings, though mixed in character, raise a substantial question of law. 3. He would submit that a substantial question of law also arises because the Appellant had been filing classification lists. These classification lists have been duly endorsed by the proper officer. In the circumstances, the law laid down by the Hon'ble Supreme Court in the case of O. K. Play Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice on the allegation that the Appellant manufactured goods out of non duty paid ship breaking scrap and non duty paid M. S. heavy rounds procured from various ship breakers and traders and cleared the goods at Nil rate of duty by availing exemption under the above Notifications during 1st March, 1983 to 28th February, 1986. These dates are crucial because the show cause notice is dated 29th July, 1988. 6. This show cause notice was adjudicated and initially an exparte order was passed on 24th January, 1989, wherein, Central Excise duty of ₹ 69,73,171.81 was confirmed and a penalty of ₹ 5,00,000/- was imposed. 7. Against this order, an Appeal was preferred to the Tribunal, which came to be allowed and the matter was re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not have been invoked by the Revenue, the demand was not tenable. However, we are not impressed by Mr. Shah's argument that there was a finding and which was in favour of the Assessee at any time. The first remand was ordered because the inputs were ship breaking scrap and that the audit parties proposed to carry out audit on particular dates, but the knowledge to the department could not be attributed of the audit inspection and at the relevant time. This was not established beyond doubt. Therefore, a remand was directed. Consequent upon such remand the Collector proceeded to pass an order and which we find not at all to be satisfactory. The Tribunal found that the Collector exceeded the scope of his authority and in terms of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the demand was time barred. It is unfortunate that this technical defence has resulted in repeated remands and the Revenue and its officers being engaged endlessly by the Tribunal and their superiors in considering the issue. In the given facts and circumstances, the Tribunal would have been well advised to decide the issue itself and in the first instance. 12. In the circumstances, we do not think that the Assessee can derive any benefit by mere filing of the classification lists or any endorsement thereon. Here the issue was whether the audit party was given an opportunity to inspect the materials and which came to be claimed as evidence of dutiable inputs. It is the Assessee who had relied upon such specific audit inspection. The mat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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