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TMI Blog1990 (10) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... med by the Assistant Collector of Central Excise, Howrah South Division in terms of Rule 571 of the Central Excise Rules, 1944. The Collector (Appeals) allowed the appeal and set aside the Assistant Collector's order on the limited ground of limitation as the demand for the deemed credit availed by them in March, 1986 and April 1986 was issued only in April, 1987. 2. In the appeal before this Bench it has been submitted that the credit wrongly availed by the assessee had been correctly ordered to be realised from them by the Assistant Collector under Rule 571 which provision had no time-limit built into it for issue of the notice, at the material time. Only subsequently, in terms of Notification No. 28/88, dated 6-10-1988, the time-limit f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p; S.M. Energy Teknik & Electronics v. Collector of Central Excise -1989 (42) E.L.T. 700 (Tribunal) = 1989 (24) ECR 122 CEGAT - WRB. On the question raised in the appeal that the plea of limitation had not been taken by them at the adjudication stage and hence it was not open to them to have raised it at the appeal stage, Shri Kapoor submitted that this is a question of law and can be raised by them in the appeal. It was, therefore, pleaded by them that the appeal may be dismissed. 5. I have considered the submissions made by both the sides. The amount of credit sought to be reversed and recovered by the demand is only Rs. 7067.10 which being less than Rs. 10,000/-, it would have been within the Tribunal's right not to admit the appeal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal and the Courts have been liberal in allowing new points constituting questions of law where the facts are not in dispute to be raised before them. The Hon'ble Supreme Court had taken the above view in Ajmer Singh & Others v. State of Haryana & Others reported vide 1990 (26) ECR 463 (SC). The Special Bench 'B' of the Tribunal had, in Collector of Central Excise v. Hiper reported vide 1989 (41) E.L.T. 322 (Tribunal), held that the plea of limitation being legal plea can be raised for the first time before the Appellate authority on the basis of material on record. The Tribunal relied upon the decision of the Hon'ble Andhra Pradesh High Court in the case of Commissioner of Income Tax, A.P. v. Gangappa Cables Ltd. reported vide 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued within the timeframe provided under Section 11A. This would be the position even before 6-10-1988 prior to the amendment of Rule 571 to make it apparently self-contained in this regard. The respondents have cited the decisions of the Tribunal in Premier Tyres Limited v. Collector of Central Excise, Cochin, 1986 (26) E.L.T. 42 (Tribunal) and in S.M. Energy Teknik & Electronics v. Collector of Central Excise -1989 (42) E.L.T. 700 (Tribunal) = 1989 (24) ECR 122 CEGAT - WRB in support of their stand that the time-limit for demands laid down in the relevant provisions would apply for demands arising from wrongful availment of credit. While the latter decision is in respect of Modvat credit the former one is in respect of exemption under N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f amounts to short levy and hence the notice was hit by limitation. 9. The facts of the present case, as far as the question of the notice for recovery of the sum alleged to have been wrongly availed of being hit by limitation would be squarely covered by the Tribunal decision cited above. I respectfully follow the same and hold that the decision of the Collector (Appeals) allowing the appeal on the question of limitation cannot be faulted though he should have been categoric in his finding about the notice being hit by limitation instead of hedging it with the stipulation "subject to the aforesaid contention being found correct". It was for him to be satisfied with this aspect before passing the order. Anyway, as I find that the facts are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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