TMI Blog2015 (11) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, it is seen from the record that no such plea was raised before the Tribunal and, therefore, we are not inclined to accept the plea at this stage - it is clear that a prayer has been made to restore the Order-in-Original passed by the Additional Commissioner of Central Excise, wherein the demand of duty invoking the larger period was taken up. The above prayer, in the considered opinion of this Court, protects the limitation of the respondent/Revenue. In such view of the matter, it cannot be contended that there was no plea of limitation raised before the Tribunal. - Decided against the assessee. - C.M.A. NO. 3135 OF 2009 - - - Dated:- 18-6-2015 - MR. R.SUDHAKAR AND MS. K.B.K.VASUKI, JJ. For The Appellant : Mr. T.R.Ramesh For The Respondents : Mr. E.Vijay Anand for R-1 JUDGMENT (DELIVERED BY R.SUDHAKAR, J.) Aggrieved by the order of the Tribunal in allowing the appeal filed by the Revenue, the appellant/assessee is before this Court by filing the present appeal. Vide order dated 16.11.09, this Court, while admitting the appeal, framed the following substantial questions of law for consideration :- 1) Whether or not the Appellate Tribunal was in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose a penalty of ₹ 80,000/= (Rupees Eighty Thousand only) on M/s.SVE under rule 173Q of the Rules. I impose a penalty of ₹ 75,000/= (Rupees Seventy Five Thousand only) on Shri M.Ramprasad, Chief Executive of M/s.SVE under Rule 209A of the Rules. M/s.SVE are liable to pay interest under Section 11AB of the Act. I appropriate the sum of ₹ 6,50,000/= (Rupees Six Lakhs Fifty Thousand only) paid by M/s.SVE towards the above dues. 4. Aggrieved against the said order of the adjudicating authority, the assessee preferred appeal to the Commissioner (Appeals), who allowed the appeal including the plea of no suppression. The Department, aggrieved by the same, filed appeal to the Tribunal through the Chief Commissioner of Central Excise, Chennai II Commissionerate, inter alia contending vide the reply to the show cause notice dated 8.4.02, the assessee had accepted the entire charges leveled against them and stated that it was done knowingly, however without knowing the consequences and accepting the mistakes had deposited a sum of ₹ 6.50 Lakhs towards duty liability. It was submitted that since the assessed had accepted the allegations in toto, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of evidence on record was given go bye by the learned Commissioner (Appeals) with scanty regard to the principles of preponderance of probability. 10. The question of time-bar being a mixed question of fact and law, conduct of the assessee shall only decide its motive of evasion of duty to come to the decision on time-bar aspect. Once motive is determined, the time-bar is also determinable according to the ingredients of Section 11A of the Act. 11. Having noticed some of the legal infirmities in the order passed by the learned Commissioner (Appeals), as aforesaid, it would be proper to remit back the matter for reappraisal and evaluation of evidence giving regard to the weight of evidence and to come to a rational conclusion. When governing facts and surrounding circumstances suggest fate of the fact, there is no question of any assumption or presumption which are sworn enemies of justice. Therefore, learned Commissioner (Appeals) after granting fair opportunity to both the sides shall properly consider weight of evidence and pleadings of both sides and pass a reasoned and speaking order on both the aspect of merit as well as on limitation issues, which have emanated fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hief Commissioner is not maintainable, no plea with regard to formation of opinion by the Commissioner before filing the appeal has been raised. In the absence of the plea raised before the Tribunal, the said plea cannot be raised before this Court at this point of time and, accordingly, the said plea raised as a question of law is rejected. 10. Insofar as the contention raised by the learned counsel for the appellant that the Chief Commissioner is not empowered to file an appeal, the answer to the same lies in Rule 3 (3) of the Central Excise Rules, 2002. For better clarity, Rule 3 (3) is extracted hereinbelow :- Rule 3. Appointment and jurisdiction of Central Excise Officers. - (1) The Board may, by notification, appoint such person as it thinks fit to be Central Excise Officer to exercise all or any of the powers conferred by or under the Act and these rules. 2) The Board may, by notification, specify the jurisdiction of a Chief Commissioner of Central Excise, Commissioner of Central Excise or Commissioner of Central Excise (Appeals) for the purposes of the Act and the rules made thereunder. 3) Any Central Excise Officer may exercise the powers and discha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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