2003 (11) TMI 114 - SUPREME COURT

Whether the demand made by revenue was barred by limitation?

Held that:- The question of limitation involves a question of jurisdiction. The findings of fact on the question of jurisdiction would be a jurisdictional fact. Such a jurisdictional question is to be determined having regard to both fact and law involved therein. The Tribunal, in our opinion, committed a manifest error in not determining the said question, particularly, when in the absence of any finding of fact that such short-levy of excise duty related to any positive act on the part of the appellant by way of fraud, collusion, wilful mis-statement or suppression of facts, the extended period of limitation could not have been invoked and in that view of the matter no show cause notice in terms of Rule 10 could have been issued.

Furthermore, even if the short-levy, if any, is to be recovered, the appellant was entitled to raise a question that he is entitled to adjust the duty upon taking Modvat credit of the duty paid on cold rolled steel strips. These aspects of the matter, in our opinion, required to be gone into by the Tribunal. Appeal allowed. The impugned judgment cannot be sustained which is set aside and the matter is remitted to the Tribunal for consideration thereof afresh