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TMI Blog2018 (3) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... s court. 2. We have heard Mr. Dwivedi learned counsel appearing for the Revenue in support of this appeal and Mr. V. Sridharan learned senior counsel appearing for the assessees-respondents. The order under appeal is delivered by the tribunal in a group of matters. Those arose from the orders-in-original. 3. The respondents before us are into catering business. The catering services, according to the Revenue, amount to manufacture of edible preparation and supply of food preparation/materials to various airlines, served on board of aircrafts. It is the case of the Revenue that the assessee (in CEXA/286/2016) was not registered with the Central Excise Department at the relevant time for manufacture of goods. Thus, the meals prepared by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s liable for penalty as well. 5. This order dated 2nd December, 2011 was then appealed to the tribunal. The tribunal was of the opinion that the adjudicating authority has not given any definite finding, much less conclusive that the activity of the assessee amounts to manufacture. The tariff entry apart, given the individual facts and circumstances, according to the tribunal, it was incumbent upon the Commissioner to have rendered a definite conclusion on this point. However, according to the Revenue's counsel Mr. Dwivedi, curiously, the tribunal went into other issues and opined that the extended period was not invokable. In other words, according to Mr. Dwivedi, the tribunal's findings and conclusions are peculiar. The tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any event, once there was a doubt created, then, there was no question of imposition of penalty. Hence, he would submit that the appeals be dismissed. 7. After hearing both sides, we are of the firm opinion that the order under appeal raises substantial questions of law. The appeals are, therefore, admitted on the following substantial questions of law:- "(i) Whether the respondent has failed to declare the details of food preparations manufactured by the assessee company and thereby contravened Rule 26 of the Central Excise Rules, 2002? (ii) Whether under the facts and circumstances, the CESTAT was correct/right in holding that the extended period was not invokable for the financial year 2005-06 and 2006-07, as the assessee has suppres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n invoked, but this is on an assumption that the activity amounts to manufacture, attracts duty, but for some period and at some stage both parties were in doubt and therefore, the duty was neither levied nor demanded and paid. 9. We do not think that this is a happy manner of deciding cases and by a last fact finding authority. A party should not be left guessing nor a higher court speculating as to whether the tribunal decided the matter by holding that the activity amounts to manufacture and yet not sustained the demand in terms of the adjudication order on the ground of limitation. Precisely, that has happened in this case. If there was no question of any show cause notice being issued, then, whether the show cause notice was issued fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f of the nature demanded by law, there was no justification for imposition of penalty. That part of the order-in-original, which imposes penalty, therefore, is rightly set aside and the issue of penalty need not be reopened in the peculiar facts and circumstances of this case. It is only on the above two points, namely, whether the activity amounts to manufacture and whether the extended period of limitation could have been invoked to demand the duty and interest that the matter would go back to the Commissioner. The adjudicating authority shall now pass a fresh order totally uninfluenced by the earlier order or by any opinion rendered in the order of the tribunal. All contentions of both sides are kept open. 12. This order will dispose of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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