9911796707
TMI Blog2015 (8) TMI 1335X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant. Despite service of notice, the first respondent has not chosen to appear. Though the name of the first respondent is printed in the cause list, there is no appearance for them. 3. The appeal was admitted on 7.2.2009 on the following questions of law:- "Whether, in the facts and circumstances of the case, the second respondent, CESTAT was correct in holding that, a) the extended period of limitation under the proviso to Section 11A(1) of the Central Excise Act, 1944, was not invokable; b) there was no intent to evade payment of duty on the waste and scrap; and c) if the demand is sustained, modvat credit of duty paid on the inputs would take care of the entire demand of duty on the waste and scrap when the first responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in original. 9. The assessee went on appeal to the Commissioner (Appeals), but, the Commissioner (Appeals) dismissed the appeal by an order dated 29.4.1999, on the short ground that the assessee failed to make a pre-deposit. Therefore, the assessee filed a further appeal before the CESTAT. The CESTAT found that the amount already paid to the extent of Rs. 8,10,927/- was not taken note of by the Commissioner. Therefore, the CESTAT remanded the matter to the Commissioner. 10. Thereafter, the Commissioner of Central Excise (Appeals) passed a fresh order dated 21.11.2000 upholding the order in original. 11. As against the said order, the assessee filed appeal in E-305/2001 before the CESTAT, Before the Tribunal, two questions arose. One was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hort levy or short payment or erroneous refund, has arisen on account of any following five reasons:- (1) Fraud (2) Collusion (3 Any wilful misstatement (4) Suppression of fact (5) Contravention of any of the provision of Act or the Rules with intent to evade payment of duty. 15. In this case, the original show cause notice alleged that the assessee cleared ferrous waste and scrap during the period from 1.3.1994 to 18.3.1995, without payment of duty. The invoices and delivery challans carried the description "M.S. Scrap" and "M.S. Plates". Apart from describing the waste as "M.S. Scrap" and "M.S. Plates", the assessee had also sold the left out pieces, after cutting the plates into required sizes for the manufacture of Wind Turbine Generat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section 4 of section 11A and seek the benefit of extended period of limitation from the relevant date. Therefore, the first question of law should also be answered in favour of the Revenue.
19. The third question of law, in our considered view, does not arise for consideration, in view of the fact that on merits, the Tribunal has found in favour of the Revenue. Hence, questions 1 and 2 are answered in favour of the Revenue. The third question does not arise for consideration as the Tribunal has held in favour of the Revenue. Hence, the civil miscellaneous appeal is allowed. The order of the Tribunal is set aside and the order of the original authority and the appellate Commissioner are restored. X X X X Extracts X X X X X X X X Extracts X X X X
|
