Home Case Index All Cases Central Excise Central Excise + HC Central Excise - 2015 (4) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (4) TMI 998 - HC - Central ExciseProsecution proceedings where demand of duty was set aside on the ground of period of limitation - non-petitioners were discharged mainly on the ground that separate proceedings for imposition of penalty were decided in favour of the non-petitioners - Held that:- Perusal of Section 11 of the Act of 1944 shows as to when and for what purpose, it can be invoked. It is for recovery of excise duty which is not paid for various reasons or could not be recovered. Section 11 of the Act of 1944, however imposes limitation for initiation of the proceedings. In the first category of cases, limitation to issue notice is only of 6 months, whereas in the second category, it is for 5 years. So far as Section 9 of the Act of 1944 is concerned, it operates for the offences and consequential penalties. No limitation for initiation of prosecution has been given therein. The facts aforesaid are relevant as proceedings in pursuance to Section 11 of the Act of 1944 were terminated as the notice was found beyond the period of limitation for recovery of excise duty. The Tribunal found case to be falling in first category having limitation of 6 months and not in second category having limitation of 5 years. The order was passed in favour of the assessee after recording finding on the issue of limitation, thus it becomes clear that determination of the issues by the Tribunal was not on merit but on limitation. It may be that arguments were made even on merit but no finding has been recorded, if the order of the Tribunal is perused. Determination of issue by the Tribunal is not on merit but on a technical ground of limitation. The same is the position regarding reference whether determination of the issue was not made but reference was dismissed on account of default in appearance of the parties concerned. - In absence of determination of issues on merit, the non-petitioner cannot take shelter of judgment of Apex Court in the case of K.C. Builders (2004 (1) TMI 7 - SUPREME Court). In the instant case, Section 9 of the Act of 1944 does not provide any limitation to initiate the proceedings though there may be limitation for taking cognizance of offence under Cr.P.C. The issue aforesaid is not raised before me. When the Tribunal so as High Court has not touched the merit, there was no reason for the revisional court to discharge the non-petitioners by setting aside the order of learned Magistrate. The non-petitioners were definitely entitled to take the benefit of delay in issuance of notice for recovery of excise duty if It was beyond the period of limitation. So far as prosecution under Section 9 of the Act is concerned, it has not provided limitation. The revisional court failed to make distinction between two proceedings and the effect of the order passed by the Tribunal and the High Court where merit of the case was not touched. - Decided in favour of Revenue.
|