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TMI Blog2016 (3) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... there was no suppression of facts with intent to evade payment of duty. So, the demand of duty for the extended period of limitation as per Proviso to Section 11A of the Central Excise Act, 1944 cannot be sustained. Hence, it would be read in the Final Order dt.10.06.2015 that “the demand of duty alongwith interest for the extended period of limitation cannot be sustained.” The ROM application filed by the Applicant is allowed in favour of assessee X X X X Extracts X X X X X X X X Extracts X X X X ..... ind that the Appellant had taken the ground in their appeal that the demand of duty is barred by limitation. The Appellant had also stated in the instant application before the Bench that this issue was escaped the notice of the Bench, while passing Final Order. In this case, the period of dispute is 2007-08 to 2009-10 and the Show Cause Notice was issued on 22.12.2010. It is seen from the Final Order dt.10.06.2012 that the Appellant pleaded before the Bench that there is no suppression of facts with intent to evade payment of duty. It is also submitted that the inputs were cleared for job work under challan and everything was within the knowledge of the Department and therefore, the penalty cannot be imposed under Rule 16(2) of CENVAT Cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I find that in the above order, the Tribunal had not given any findings on limitation issue. It is also noted that the Tribunal while setting aside the penalty under Section 11AC has observed that there was no suppression/mis-statement on the part of the Appellant with intent to evade payment of duty. Therefore, in my considered view, the demand of duty for the extended period of limitation cannot be sustained. In the similar circumstances, the Tribunal in the case of M/s Elecon Engineering Co. Ltd (supra) allowed the ROM application and held that the demand is time barred. The relevant portion of the said decision is reproduced below:- "4.2 Revenue has not challenged the above order regarding reasoning given and non-imposition of penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of facts recorded in its final order No.A/11697/2014 dated 25.09.2014 in exercise of power under Section 35C(2) of the Central Excise Act, 1944? (b) Whether on the facts and in the circumstances of the case, the CESTAT is justified in re-appreciating the evidence to hold that was no intention on the part of the respondent Assessee to evade payment of duty and, therefore, it is not permissible to invoke extended period of limitation to demand under proviso to Section 11A of the Central Excise Act, 1944 and thus the demand made in the Show Cause Notice is time barred? (c) Whether on the facts and in the circumstances of the case, the CESTAT is justified in modifying its final order No.A/11697/2014, dt.25.09.2014 to hold that Show Cause No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red nature of Section 11A demand is allowed and mistake rectified accordingly." 6. It is well settled by series of decisions that a contention though taken but not decided by the Tribunal would give rise to the scope for rectification. Under the circumstances, the Tribunal was justified in entertaining contention which was raised by the Assessee at the outset but not decided by the Tribunal while rendering its judgment on appeal. If that be so, the only question which remains to be decided is, whether while entertaining such a contention, the Tribunal committed any legal error? Here also, we do not find any force in the contention of t the Revenue. As asserted by the Assessee and held by the Tribunal, the Assessee had made all necessary d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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