2006 (8) TMI 15

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....00-D and E/2694/2000-D whereby and where under the Tribunal has set aside the order passed by the Commissioner (Appeals) and restored the order-in-original. 4. Learned Counsel appearing for the appellant has addressed his arguments on four points i.e. (i) appellant is a small scale industry; (ii) regarding maintainability of appeal before the Tribunal under Section 35B(2); (iii) regarding limitation; and (iv) regarding penalty. 5. Heard learned Senior Counsel appearing for the revenue. 6. After hearing counsel on both sides, we do not find much substance in the made by the learned Counsel for the appellant on point Nos. (i) and (ii) and the findings recorded by the Tribunal on these points are confirmed. On the point of limitation ....

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....mis-conceived and without any evidence to substantiate it. It wouldn't normally take more than two months for the party to agitate one as grave a matter as the time barred nature of a demand. The chronology of the events and the facts on record clearly points to the baseless ness of the part contention." 9. Learned Senior Counsel appearing for the revenue contended that the Tribunal held that the notices were served within the period of limitation. In our view, the Tribunal has not recorded an independent finding on this point. The Tribunal has not considered as to what was the relevant date within the meaning of Section 11 A (3) (B & C) of the Central Excise Act, 1944 (for short 'the Act'). Similarly, the Commissioner (Appeals) did not ....

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....llows: "…Therefore, in order to attract the proviso to Section 11 A (l) it must be alleged in the show cause notice that the duty of excise had not been levied or paid by reason of fraud, collusion or wilful mis-statement or suppression of fact on the part of the assessee or by reason of contravention of any of the provisions of the Act or of the Rules made thereunder with intent to evade payment of duties by such person or his agent. There is no such averment to be found in the show cause notice. There is no averment that the duty of excise had been intentionally evaded or that fraud or collusion had been noticed or that the assessee was guilty of wilful mis-statement or suppression of fact. In the absence of such avermerits in the sh....