2013 (4) TMI 216

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....appeal, this Court formulated following two substantial questions of law for consideration and determination. [i] "Whether the learned Tribunal is justified in the eye of law, in facts and the circumstances of the case, in holding that the demand of the duty by the Revenue in respect of undisputed sale of the paper waste and plastic waste and scraps is not sustainable in the eye of law ?" [ii] "Whether the learned Tribunal is justified in the eye of law, in facts and circumstances of the case, in holding that the demand of the duty is barred by the limitation as there is no mala fide on the part of the said Unit, though there is suppression of clandestinly clearance of the subject goods, without payment of duty and without information to ....

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....r the period from May 1996 to December 1999. Penalty under section 11AC and interest under section 11AB of the Act were also sought to be levied. The adjudicating authority confirmed the demand under section 11A(1) of the Act of Rs.1,60,673/leviable on clearance of waste of plastic and waste of paper and also directed to pay penalty of Rs.1,58,955/as well as the interest. 3.2 The Commissioner (Appeals) by his order dated 25.10.2005 rejected the appeal of the assessee and upheld the order of the adjudicating authority. The appellantassessee thereafter preferred appeal before the Custom, Excise and Service Tax Appellate Tribunal (hereinafter mentioned as 'the CESTAT' for short), which came to be allowed as per the impugned order. 4. As coul....

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....ix months' by amending Act of 10 of 2000 with effect from 12.05.2000. Similarly, in the Proviso, in place of 'one year', the words 'five years' came to be replaced by the same amending Act.   5.1 Admittedly, the demand in the show cause notice for duty, penalty etc. was relatable to the period from March 1996 to December 1999. The show cause notice was issued on 20.02.2001. In respect of the relevant period in the show cause notice, the period of limitation application was six months as per the above provision and the extended period under the Proviso was one year. Ex facie therefore, the show cause notice was beyond limitation in terms of section 11A(1) of the Act. 6. The Tribunal in impugned order observed on the aspect of limita....

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....the present appeal, learned advocate for the appellant department relied on various judicial pronouncements in which the tests of marketability have been laid down by the courts. However, we find it not necessary to delve into that aspect, when in our view the Tribunal was justified in holding that merely because no classification list was filed, that by itself was no ground for invocation of longer period of limitation. As stated above, the assessee was agitating his case before the Excise authorities resting on the belief that the paper and plastic wastes in question were not excisable items, by contending that they were not marketable. There was neither a willful misstatement nor suppression of facts with intent to evade payment of duty....