2009 (10) TMI 705

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..... Respondent. ORDER In this application filed by the appellant, it is submitted that there is a mistake apparent from the records in Final Order No. A-153/2009/SMB/C-IV dated 30-3-2009 [2009 (246) E.L.T. 491 (Tri.-Mumbai)] passed by this Bench in appeal E/993/2003. The mistake pointed out by the appellant is that their plea of limitation was not considered in the said final order. According to the .....

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..... thorities by way of recovery of CENVAT Credit wrongly taken was sustained. However, the plea of limitation raised by the appellant was not considered. As rightly pointed by the appellant in the present application, such plea was allowed to be raised through an amendment of the memorandum of appeal, which was allowed on 24-10-2008. According to the new ground of the appeal, the show-cause notice di .....

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..... d. "3 A The appellant has also raised the plea of limitation. It is submitted that the show-cause notice, which was issued under Rule 571 of the erstwhile Central Excise Rules, 1944, did not invoke the extended period of limitation by alleging suppression of facts or any other ingredient of the provision for extended period of limitation. The credit in question was taken on 2-3-2000 and the show- .....

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..... ised by the appellant has two legs. In the first, it is their submission that the show-cause notice was issued after the normal period of one year and did not allege extraneous grounds of suppression of facts etc., for invoking the extended period of limitation. In the second leg of their plea, the appellant submits. in the absence of allegation of suppression, misdeclaration etc. in the show-caus .....

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..... first time. In my considered view, the plea of limitation raised before the Tribunal for the first time, which involves mixed questions of fact and law, cannot be entertained. Contextually, I must also clarify that the amendment of memorandum of appeal per se would not entitle the appellant to claim a favourable decision. Even after allowing the appellant to insert the new ground in the memorandum .....

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