TMI Blog2019 (8) TMI 1365X X X X Extracts X X X X X X X X Extracts X X X X ..... fficient consideration of this crucial issue which is undoubtedly a jurisdictional issue in a matter of this nature. The records indicate that even after the impugned judgment and order was filed, the assessee immediately applied for rectification pointing out that the issue of limitation was not even adverted to by CESTAT. This rectification application was dismissed by observing that if there was no consideration of issue of jurisdiction, then the same may amount to an error apparent on the face of record and it will be open for the assessee to institute a review petition or a petition for recall of the CESTAT order. The assessee, did institute a petition for recall which was again dismissed on the ground that the scope of a recall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) Whether the penalty leviable under Rule 57 1 (1)(iv) of Central Excise Rules 1944 is mandatorily to be imposed and whether there is discretion to the appellate authority/CESTAT to impose penalty lesser than the prescribed therein? 4. Excise Appeal No. 2/2010 was admitted on 28.07.2010 on the following substantial questions of law:- a) Whether the correct duty having been paid and there being no case of evasion of payment of duty, the impugned order dated 06/12/2007 of the Appellate Authority confirming the order of the Commissioner dated 29/03/2000, denying credit to the assessee under Modvat Scheme, to the tune of ₹ 20,74,861/- and imposing penalty of equal amount, is in excess of jurisdiction? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department informing the department very clearly of the procedure which was being adopted by the assessee. For all these reasons, he submits that the assessment which commenced beyond the prescribed period of limitation under Section 11 A of the Central Excise Act was in excess of jurisdiction. He submits that though this issue was expressly raised, the same is not even been considered by the CESTAT. 7. Ms. Kamat, the learned Standing Government Counsel for Excise Department, refers to para 3 of the impugned judgment and order dated 06.12.2007, so to point out that, this aspect has been considered by the CESTAT in as much as the CESTAT has referred to the order of the commissioner in which, it is clearly stated that the assessee p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this crucial issue which is undoubtedly a jurisdictional issue in a matter of this nature. 12. The records indicate that even after the impugned judgment and order was filed, the assessee immediately applied for rectification pointing out that the issue of limitation was not even adverted to by CESTAT. This rectification application was dismissed by observing that if there was no consideration of issue of jurisdiction, then the same may amount to an error apparent on the face of record and it will be open for the assessee to institute a review petition or a petition for recall of the CESTAT order. 13. The assessee, did institute a petition for recall which was again dismissed on the ground that the scope of a recall applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered by the CESTAT depending upon its findings on the grounds raised by assessee on the question of limitation and merits of the adjudication order. 17. Accordingly, both the appeals are hereby allowed and the impugned judgment and order of the CESTAT is set aside. 18. The matter is remanded to the CESTAT for fresh adjudication in accordance with law and on merits. All contentions of the parties are left open for evaluation by CESTAT. 19. The parties to appear before the CESTAT on 23.09.2019 and file an authenticated copy of this order. 20. We request the CESTAT to dispose of the two appeals as expeditiously as possible and in any case within a period of six months from the date, the parties file authenti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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