TaxTMI 
TaxTMI 
2011 (2) TMI 991
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....espondent. 2. As per facts on record the respondents are engaged in the weaving of cotton grey fabrics and were not registered with the Central Excise Department and were not paying any duty of excise therein by treating the said fabrics as cotton grey fabrics which had not been subjected to any further process and as such falling under Chapter 52 of Central Excise Tariff Act, 1985, attracting the nil rate of duty. 3. Based on an information that the fabrics being woven by the respondent are in fact leno gauze fabrics classifiable under Chapter 58.03, attracting central excise duty, search was conducted in the respondent s factory on 29.07.02. Statements of various persons were recorded. Samples of the fabrics manufactured b....
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....for the Revenue submits that the respondent never raised the issue of limitation before the adjudicating authority and as such they cannot raise the same now before the Tribunal. Elaborating on his above submission, he submits that the impugned order stands appealed against by the Revenue and the respondents have not filed any appeal against the same and as such the plea of the respondents on time bar cannot be entertained by the Tribunal. He also submits that the proprietor of the unit, in his statement recorded during the course of investigation has not expressed any doubt about the kind of fabric being manufactured by them and as such the plea of bonafide belief cannot be appreciated. He referred to many decisions of the Tribunal laying ....
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....e appreciated at this point. In any case the plea of limitation being a mixed question of law and fact can be raised at any point of time. 10. Though we agree that the Commissioner has not considered the plea of limitation and has dropped the demand on merits, in which case we would have normally remanded the matter to Commissioner for fresh decision on the said legal issue. However, as we find that though the limitation as such does not stand considered by him, there are various findings of fact and observations made by him, which can enable us to take a decision on the point of limitation, at this stage itself and as such, remand to decide the issue of time bar, would be an empty formality and would lead to unwarranted increase in....
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....medabad, are not subjected to duty, levy and collection and then why they should be. 14. The above observations and findings arrived at by the Commissioner duly support the respondent s plea that there was a bonafide impression not only on their part but in the industry itself that such type of grey cotton fabric is not leviable to duty of excise. The adjudicating authority has referred to many other assessees similarly situate, who were not paying any duty. If that be so, the mere fact of non registration and non payment of duty by the respondents cannot be held to be a factor reflecting any malafide on their part so as to invoke the longer period of limitation. 15. The Hon ble Supreme Court in the case of Padmini Products ....
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.... Offset order No.A/223/WZB/AHD/2011 dated 04.02.11 while dealing with the appellant s plea of limitation Tribunal observed as under: It may be seen from the above that the show cause notice presumed that contravention of rules and the provisions of law is sufficient to support invocation of extended period and no other evidence is required. Further, the original adjudicating authority has reproduced the paragraph of show cause notice and for him it appears to be a case of suppression/mis-declaration. The Commissioner (Appeals) has affirmed the suppression but without any supporting fact/document of evidence. Therefore, we find that no ground has been made out for invoking the suppression and extended period in the show cause notice and neit....