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2015 (2) TMI 135 - HC - Central ExciseExcisability of waste and scrap - Invocation of extended period of limitation - Whether the CESTAT is right in giving the relief to the assessee with reference to the excisability and durability of plastic waste and scrap based on the Order-in-Original No.12/95 dated 15.9.1995 which had been set aside by the Commissioner (Appeals) and CESTAT, wherein both the authorities had held that plastic waste and scrap are excisable and dutiable - Held that:- On a perusal of the order of the Tribunal, the facts, as is evident, make it clear that on and from 1.3.94, i.e., period post the order of the Deputy Commissioner of Central Excise dated 15.9.95, till the order in appeal No.37/02 dated 8.6.02, the assessee was under the bona fide impression that removal of waste and scrap does not attract duty. The Department had chosen not to issue notice pending appeal, for which failure thereof, they are not entitled to invoke the proviso to Section 11-A, as has been rightly held by the Tribunal. - Tribunal was justified in allowing the appeal on the question of limitation. There is no such finding of fact by the Commissioner (Appeals), for invoking the extended period in terms of proviso to Section 11-A of the Central Excise Act and, therefore, a question of fact, which was not the subject matter of finding by the Commissioner (Appeals) and not dealt with therein, ought not to have been raised and, therefore, the said question does not require to be answered by this Court. - Decided against Revenue.
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