TMI Blog2012 (12) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... not give any clue in this regard. Therefore, in absence of any evidence regarding service of show cause notice on the respondent prior to 22-7-2005, the impugned order of Commissioner (Appeals) holding the show cause notice to be time barred cannot be faulted. - E/559/2006 - A/500/2012-EX(BR)(PB) - Dated:- 30-4-2012 - Justice Ajit Bharihoke, Shri Rakesh Kumar, JJ. REPRESENTED BY : Shri S.R. Meena, AR, for the Appellant. Shri Bipin Garg, Advocate, for the Respondent. [Order per : Justice Ajit Bharihoke, President]. The department has preferred this appeal against the order of Commissioner (Appeals) No. 01/CE/JC(Adj)/Adj/05, dated 22-8-2005 whereby he accepted the appeal. The order-in-original confirming duty demand of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te for the respondent submitted that Section 11A of the Central Excise Act, 1944 provides limitation of period of one year for service of show cause notice on the assessee and this proviso in cases of fraud, collusion or willful misstatement or suppression of facts extends that limitation upto five years. He submitted that in the instant case Commissioner (Appeals) rightly held the claim of the department is time-bar for the reason that show cause notice pertaining to the demand relating to May 1998 to September, 1998 was served on the respondent in the year 2005 i.e. after expiry of more than five years from the period of order. 5. We have considered the rival contentions and perused the record. Only issue raising for determination in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ginal would show that as per this order written submissions against the show cause notice was submitted by the Counsel for the assessee/respondent on 22-7-2005. There is nothing in the order-in-original or the record to show as to what proceedings took place pursuant to the show cause notice before the filing of written submissions by the assessee/respondent on 22-7-2005. Had the plea of the appellant, that show cause notice was served on the respondent in the year 1998, been correct there ought to have been some proceedings conducted during the period upto 22-7-2005. The order-in-original do not give any clue in this regard. Therefore, in absence of any evidence regarding service of show cause notice on the respondent prior to 22-7-2005, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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