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TMI Blog2024 (12) TMI 837X X X X Extracts X X X X X X X X Extracts X X X X ..... tember 2014 for the period August 2009 to September 2012 is barred by limitation? - HELD THAT:- For the question to be raised in an appeal to the High Court under Section 35G, the same should arise out of the Tribunal s order against which an appeal is preferred to the High Court. Section 35G (1) provides that an appeal shall lie from every order passed in appeal by the Appellate Tribunal. Therefore, the issue dealing with notice being barred by limitation should arise from the Tribunal's order. On a perusal of the Tribunal's order, the issue of notice being barred by limitation does not appear to have been raised by the Appellant since there is no such recording by the Tribunal in the order. This issue, in the facts of the case, is a mixed issue of fact and law. Since the issue of a notice being barred by limitation has not been argued in the view of the absence of the same being recorded in the Tribunal s order, the question would not arise from the Tribunal s order. In-ground (h) of the appeal memo before this Court it is stated that ground relating to limitation was raised in the appeal before the Tribunal. However, the Tribunal has failed to consider the same and, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and left the factory premises for the customer's destination. Based on the excise invoices raised by the Appellant, the customers used to take Cenvat credit. There is no dispute that unless the goods enter the factory premises and leave the factory premises, Cenvat Credit cannot be taken. In the show cause notice dated 5 September 2014, it is stated that the Appellant availed inadmissible Cenvat Credit and also wrongly passed the incidence of duty to various customers. The show cause notice records statements made by various customers of the Appellant in support of this modus operandi - On a specific question being asked to the customers as to how they had taken Cenvat Credit when the goods were not being transported from the factory premises, they have categorically stated that the Cenvat Credit was taken based on invoices issued by the Appellant. The Appellant has rebutted none of these statements of the customers. In the statements recorded of the representatives of the Appellant they have also admitted to the said modus operandi adopted by them which has not been rebutted. The Tribunal, being final fact-finding authority, has given a finding of fact that the Appellant has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u Mr. Omkar Chavan i/b. Wadia Ghandy Co. For the Respondent : Mr. Ram Ochani a/w Ms. Niyati Mankad (through VC) Mr. Akash Singh. JUDGMENT PER (JITENDRA JAIN J) :- 1. Heard learned counsel for the parties. 2. This appeal is filed under Section 35G of the Central Excise Act, 1944 by the Appellant-Assessee proposing the following substantial questions of law arising out of the Tribunal s order dated 27 February 2024:- QUESTIONS OF LAW (1) Whether the Tribunal erred in holding that there was no reversal of Cenvat Credit merely because the reversal was in the form of debit in the Cenvat register, at the time of issuing the sales invoice? (2) Whether the Tribunal erred in equating the Cenvat Credit reversal with utilization in as much as utilization of Cenvat Credit is for payment of excise duty, whereas in the present case admittedly excise duty was paid on receipt from the buyer and not through Cenvat Credit? (3) Whether, in the absence of prescribed method for reversal of Cenvat Credit, has the Tribunal erred in not accepting the method adopted by the Appellant. (4) Whether the impugned order is sustainable in upholding the equal penalty by the non-speaking and without reasons order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Thane, who passed an order disallowing the Cenvat Credit of Rs. 5,63,66,047/- wrongly availed and utilised by the Appellant during the period August 2009 to September 2012 and ordered the recovery of the said amount. By this order, a penalty of Rs. 6,82,11,154/- was also imposed on the Appellant under Rule 15 (2) of the Cenvat Credit Rules, 2004, read with Section 11AC of the Central Excise Act, 1944. The Commissioner also imposed a penalty on the Managing Director and ordered the reversal of other Cenvat Credit with which we are not concerned in the present appeal since the relief on the other issues has been granted by the Tribunal. Being aggrieved by the said Order-in-Original of the Commissioner, the Appellant appealed to the Tribunal, raising various grounds. 5. The Tribunal, vide its order dated 27 February 2024, confirmed that the Order-in-Original, whereby Cenvat Credit of Rs. 5,63,66,047/- was disallowed and ordered to be recovered along with interest and penalty, was set aside. Insofar as other demands and penalties are concerned, the same were set aside. 6. Aggrieved by the aforesaid order of the Tribunal, the Appellant has preferred the present appeal on substantial q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round may be raised in the appeal but may not have been argued before the Tribunal, in which case the Appellant cannot raise a grievance that the Tribunal has failed to give its finding on the said ground. If the ground was argued before the Tribunal and the same has not been considered by the Tribunal then the correct approach of the Appellant should have been to make an application for rectification of the order passed by a Tribunal by filing application for Rectification of Mistakes (ROM) before the Tribunal. In the instant case, we are informed that the Appellant has not filed any such application before the Tribunal. We cannot, in an appeal before us, entertain such a ground because we are not aware as to whether the ground of limitation was argued before the Tribunal or not. The Tribunal s record must be given credence. The appeal Court does not lightly entertain any attacks against the Court s record. The proper mode is approaching the same court within a reasonable period, if not at the earliest. Even ground (h) only speaks that same was raised in the appeal, but it does not say that it was argued before the Tribunal. Admittedly, there is no discussion on the ground of limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit. There is no dispute that unless the goods enter the factory premises and leave the factory premises, Cenvat Credit cannot be taken. 14. In the show cause notice dated 5 September 2014, it is stated that the Appellant availed inadmissible Cenvat Credit and also wrongly passed the incidence of duty to various customers. The show cause notice records statements made by various customers of the Appellant in support of this modus operandi. The customers have stated that although the goods were received from customs bonded warehouse, the documents received from the Appellant were shown as if the goods had been dispatched from the factory at Tarapur. On a specific question being asked to the customers as to how they had taken Cenvat Credit when the goods were not being transported from the factory premises, they have categorically stated that the Cenvat Credit was taken based on invoices issued by the Appellant. The Appellant has rebutted none of these statements of the customers. In the statements recorded of the representatives of the Appellant they have also admitted to the said modus operandi adopted by them which has not been rebutted. 15. In the Order-in-Original dated 23 De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred to hereinabove and the same is corroborated by the customers' statements also. In our new, such findings of facts would not raise any question of law much less substantial questions of law. 18. During the course of the hearing before us, the learned Senior Counsel for the Appellant stated that the Appellant had filed a detailed chart which is at pages 167 onwards, to show the date of reversal, and the Tribunal has failed to consider the same. In our view, if these charts were brought to the notice of the Tribunal and the Tribunal has not considered the same, the Appellant should have filed a rectification application to the Tribunal stating that these charts have not been referred in the Tribunal's order. However, the same was brought to the notice of the Tribunal. In the absence of any such thing, we cannot accept the statement made by the learned counsel for the Appellant. In any case, the issue doesn't stop by reversal, but it extends to the invoices prepared to show that the goods have entered the factory and sold from the factory to the customers and thereby, the customers availed the Cenvat Credit, which is the issue which was required to be addressed whic ..... 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