TMI Blog2010 (5) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... smissed. - 1349 of 2009 - - - Dated:- 6-5-2010 - D.A. Mehta and H.N. Devani, JJ. REPRESENTED BY: Shri Gaurang H. Bhatt, for the Appellant. None, for the Respondent. [Order per : H.N. Devani, J.]. - The Appellant-Revenue has challenged order dated 26.11.2008 made by the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal) proposing the following four questions: (1) Whether the Ld. Tribunal committed error in interpreting and applying the Provision of erstwhile Rules 57B(1)(IV) of Central Excise Rules, 1944, by allowing the credit of duty paid on input namely Furnace Oil used as Fuel in the manufacture of Steam which was sold for subsequent use outside the factory of production ? (2)Whether the Ld. Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent carried the matter in appeal before Commissioner (Appeals). Placing reliance upon earlier orders of the Tribunal in matters involving similar issue, Commissioner (Appeals) allowed the appeal. 3. Revenue carried the matter in appeal the Tribunal. The Tribunal vide the impugned order held in favour of the revenue on merits, but dismissed the appeal on the ground of limitation. 4. Mr. Gaurang Bhatt, learned Standing Counsel for the appellant has very vehemently assailed the impugned order of the Tribunal. Attention is invited to the order passed by the adjudicating authority to submit that the adjudicating authority had recorded findings of fact indicating that the respondent had not disclosed facts and details regarding manufactur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credited on furnace oil for manufacture of steam as the same was not utilized by it for manufacture of its final product vide RG 23A Pt. II entry dated 15.7.2000. It was accordingly contended that there was no suppression of facts and that all relevant facts were known to the department and as such the provisions of section 11A for extended period could not be invoked in this case. However, in the entire order there is not even a whisper as to why the submissions advanced by the respondent assessee were not acceptable. 7. The Tribunal in its impugned order has found that on merits the order of Commissioner (Appeals) cannot be upheld in view of the decision of the Supreme Court in the case of Collector of Central Excise v. Solaris Chemt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat at the relevant time there was a decision of the Larger Bench of the Tribunal as well as of this High Court in favour of the respondent, which gets reinforced by the fact that Commissioner (Appeals) had decided in favour of the respondent on merits, it appears that there was an ambiguity as regards the applicability of the relevant Rules. In the circumstances, it cannot be stated that there is any legal infirmity in the order of the Tribunal in holding that there was no suppression or malafide on the part of the respondent so as to warrant invocation for the larger period of limitation. 9. In the aforesaid circumstances, no question of law, much less any substantial question of law can be stated to arise from the impugned order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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