2010 (5) TMI 246

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...., J. (Common oral)]. - Both these appeals are taken up for hearing together as they arise out of a consolidated order of Tribunal dated 05th January, 2009. Appellant Revenue has proposed the following two questions in both the tax appeals:-   (A) Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law in holding that there was no malafide inten....

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....nue is that respondent assessee, namely the limited company who is manufacturing Polyester Films, has wrongly availed of cenvat credit by making payment of countervailing duty by debiting DEPB passbook instead of making payment in cash for the period April, 2003 to April, 2005. Therefore, according to appellant, cenvat credit amounting to Rs.62,71,210/- was wrongly availed of by the limited compan....

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....t by revenue, such wrong availment of credit would not have come to light. Attention was also invited to paragraph nos.24 and 25 to submit that for invoking larger period there was clear suppression of facts on part of the assessee and assessee having pressed into service Tribunal's decision in case of M/s. Polyhose at the time of making the claim ought to have thereafter come voluntarily to surre....

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....resent case, revenue had categorically recorded a finding as to suppression in the order-in-original but ultimately what is to be examined is whether in fact there is any suppression. This would be primarily a question depending upon facts and circumstances of each case. When one goes through the order-in-original, it becomes clear that in paragraph no.3 of the said order, the basis for making the....