TMI Blog2010 (5) TMI 480X X X X Extracts X X X X X X X X Extracts X X X X ..... erroneous. Besides, it is also apparent that the matter has been taken up for hearing while considering the application for waiver of pre-deposit and the revenue has not been given any opportunity of hearing on the question of limitation, and as such the impugned order of the Tribunal stands vitiated on the ground of breach of principles of natural justice and as such cannot be sustained. – Matter remanded to Tribunal for fresh consideration - 744 OF 2009 - - - Dated:- 5-5-2010 - D.A. MEHTA AND MS. H.N. DEVANI, JJ. JUDGMENT Ms. H.N. Devani, J. - Appellant-revenue has challenged order dated 23-9-2008 made by the Customs, Excise and Service Tax Appellate Tribunal proposing the following two questions : 1. Whether in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arises for consideration : Whether the Customs, Excise and Service Tax Tribunal was justified in law in passing an order on the issue of limitation without recording the facts and the stand of the other side? 7. Show-cause notice dated 17-10-2007 came to be issued against the respondent for recovery of CENVAT credit wrongly taken and utilised by it for the period 10-9-2004 to 31-12-2006 under rule 14 of the CENVAT Credit Rules read with section 73 of the Finance Act, 1994, by invoking the extended period of limitation of five years under the said provisions. The show-cause notice came to be adjudicated vide order dated 20-12-2007, whereby demand of Cenvat Credit amounting to Rs. 5,40,148 under rule 14 of the Cenvat Credit Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty, we proceed to decide the appeal itself inasmuch as the demand stand contested only on the point of limitation. 2. Learned advocate Shri Willingdon Christian for the appellant fairly concedes that the issue of availability of service tax paid on erection, commission and installation of wind-mill for generation of electricity away from factory premises, stand decided against them by the Tribunal s decision in case of Rajhans Metals (P.) Ltd. v. CCE 2007 (8) STR 498 (Trib. - Ahd.), as also in case of Atul Auto Ltd. v. CCE vide Order No. A/332/WZB/Ahmedabad/2008, dated 29-2-2008. However, relying upon the very same judgments, learned advocate submits that Tribunal has observes that this is a issue of interpretation and as such, there wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to in the impugned order and has accepted the contention raised by the learned advocate for the respondent that major part of the demand would be hit by the bar of limitation. However, in the entire order there is not even a whisper as regards the stand of the other side, viz. the revenue, on the point of limitation. A perusal of the order of Commissioner (Appeals) indicates that while relying upon very same judgment on which the Tribunal has placed reliance, Commissioner (Appeals) has given findings as to why the extended period of limitation had been correctly invoked by the adjudicating authority as well as on the ground of penalty. The Tribunal in the impugned order has not given any reasons as to why the finding recorded b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground of breach of principles of natural justice and as such cannot be sustained. 13. Moreover, though the appeal had been contested only on the aspect of limitation, the Tribunal has also heard the learned advocate for the respondent on the question of penalty, that too, without recording any submissions of the other side and has set aside the order of penalty also. Thus, the part of the order setting aside the penalty also suffers from the breach of principles of natural justice, inasmuch as revenue does not appear to have been granted any opportunity of hearing. Thus, the impugned order of Tribunal suffers from the vice of being an unreasoned order insofar as the question of limitation is concerned, and from the vice of breach of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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