Limitation plea in central excise cannot be raised first time on mixed facts and law, though omission may be rectified.

A limitation plea based on the proviso to Section 11A(1) of the Central Excise Act, 1944 was treated as involving mixed questions of fact and law because the foundational facts had not been raised before the lower authorities. As a result, the plea could not be entertained for the first time before the Tribunal, and the substantive limitation challenge remained not maintainable at that stage. However, the omission to deal with a ground earlier permitted by amendment of the appeal memo was a rectifiable error, so the rectification application succeeded only to amend the final order to record the limitation issue.

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Issues: Whether the plea of limitation, raised for the first time in the appeal and involving mixed questions of fact and law, could be entertained, and whether non-consideration of that plea in the final order constituted a mistake apparent from the record warranting rectification.

Analysis: The rectification application succeeded to the extent that the final order had omitted to deal with the limitation plea, which had earlier been permitted to be added by amendment of the memorandum of appeal. The plea was based on the allegation that the show-cause notice was issued beyond the normal period under the proviso to Section 11A(1) of the Central Excise Act, 1944, without alleging suppression or similar ingredients needed for invoking the extended period. The reasoning drew a distinction between the factual question of when the notice was issued in relation to the credit taken and the legal question whether limitation could be applied in the absence of the requisite allegations. Since the crucial facts supporting the plea had not been raised before the original or first appellate authority, the plea was held to involve mixed questions of fact and law and could not be entertained for the first time before the Tribunal. The order nevertheless required correction because the plea had been left unconsidered in the earlier final order.

Conclusion: The rectification application was allowed only to the extent of amending the earlier final order to record the limitation issue, but the limitation plea itself was held not maintainable at that stage.

Final Conclusion: The earlier final order stood amended, while the substantive challenge based on limitation remained rejected at the Tribunal stage.

Ratio Decidendi: A limitation plea raising mixed questions of fact and law cannot be entertained for the first time in appeal or rectification when the foundational facts were not pleaded before the lower authorities, though omission to consider such a permitted ground may still constitute a rectifiable error.

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