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TMI Blog2018 (12) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... cum demand notice was issued in respect of transactions had for the year 2009-11. The show-cause cum demand notice is dated September 11, 2013. It is beyond the period of limitation of one year prescribed under Section 11A of the Central Excise Act, 1944. For the authorities to invoke the provisions of Section 11A(4) of the Act of 1944, the essential ingredients in respect thereto must be present. In the present case none of them are present. The claim being barred by limitation, the assumption of jurisdiction by the authorities in issuing the show-cause cum demand notice and the consequent order in original is without jurisdiction. He refers to page 277 of the writ petition and submits that, grounds (iii), (iv) and (ix) at such pages were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner. The petitioner relied upon a number of judgments on the points raised before the adjudicating authority. None of the judgments were considered in the Order in Original. Learned Advocate appearing for the respondent submits that, the petitioner obtained registration as a manufacturer under the under the Duty Free Credit Entitlement (DFCE) scheme. It availed benefits under such scheme. A raid was conducted at the business premises of the petitioner on March 22, 2011. Immediately thereafter, the petitioner surrendered such registration on May 6, 2011. The show cause cum demand notice was issued within the extended period of five years as prescribed under Section 11A(4) of the Act of 1944 on the ground that the petitioner was guilty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013 requiring the authorities to allow the petitioner to cross-examine the prosecution witnesses. Pursuant to the Order dated September 11, 2013, the authorities requested the petitioner to provide the list of prosecution witnesses which the petitioner wanted to cross-examine. The petitioner submitted the list of witnesses which it required to crossexamine. The petitioner was afforded the opportunity to cross-examine such witnesses. It is not the case of the petitioner that, all witnesses that the petitioner wanted to crossexamine were not provided to the petitioner for cross-examination. In such circumstances, it cannot be said that the petitioner was denied any right to cross-examine any of the prosecution witnesses. It is the choice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith interest thereon along with penalty equivalent to the duty specified in the notice. The show-cause notice alleges that, the petitioner is guilty of suppression of facts. Section 11A(4)(d) of the Act of 1944 deals with such scenario. Such clause relates to suppression of facts. In the facts of present case, the petitioner claimed itself to be a manufacturer and obtained a registration. On raid, the authorities found that, the petitioner not to be a manufacturer and to have indulged in trading of the imported goods after obtaining the benefits under the DFCE Scheme. The authorities found the petitioner to have suppressed facts relating to its business while obtaining the registration and the benefits under the DFCE Scheme. The change of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The impugned Order in Original finds the proceedings to be within the period of limitation and gives reasons for the same. Essentially, it is of the view, the proceedings are within the period of limitation under the provisions of Section 11A(4) of the Act of 1944. There is no evidence placed on record to suggest otherwise. As noted above, all witnesses that the petitioner wanted to cross-examine were allowed to be cross-examined. Therefore, on such ground also the petitioner has no case. So far as the transporter's evidence is concerned, there are discussions in the impugned order with regard thereto. The impugned order does not proceed merely on the basis of transporter's evidence. It takes into consideration evidence given by the dive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the point of limitation states that, in the facts of the present case as obtaining herein, the proceedings are barred by limitation. Limitation is mixed question of fact and law. The Order in Original decides the issue of limitation. In doing so, it did not err in applying a wrong law or fact. The petitioner being allowed to cross-examine the list of witnesses that it gave to the authorities, the applicability of judgments on the question of cross-examination does not arise. Artee Overseas Private Limited (supra) cannot be read to suggest that, every judgement cited by a party to a proceeding when irrelevant must also be dealt with failing which, the order passed by the adjudicating authority would stand vitiated by the breach of principles ..... X X X X Extracts X X X X X X X X Extracts X X X X
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