TaxTMI 
TaxTMI 
2017 (2) TMI 1300
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....6) E.L.T. 705 (Tri.-Chennai)], which was admitted on 17-9-2010 for consideration of the following substantial questions of law : "1. Whether the first respondent was correct in holding that the appellant is a manufacturer when M/s. C.P. Spinning Mills was running the appellant's factory by virtue of the memorandum of understanding dated 8-7-2000? 2. Whether the first respondent failed to see that the appellant had no role at all in the manufacturing activity and the manufacturing activity was entirely carried out as per the whims and fancies, directions and controls of CPSM. CPSM have themselves manufactured the goods in the premises of the appellant by utilizing the facilities and labour of the appellant, by exercising abso....
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....e appellant unit and thereafter it would sell the same. 3. While so, the appellant's premises was visited by the officials of Directorate General of Central Excise and Intelligence and certain documents were recovered. After enquiry, a show cause notice dated 14-12-2004 was issued to the appellant alleging that cotton yarn in cone was manufactured and cleared without payment of excise duty by the appellant during the period August, 2000 to June, 2002 and in some cases, cotton yarn in cone had been cleared in the guise of hank yarn, which was exempted from payment of duty and in some case, the cotton yarn had been undervalued, thus demanding duty of Rs. 2,90,92,416/- and penalty thereon under Section 11AC was imposed in addition to d....
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....erred cross appeal. The first respondent, vide final Order No. 449 of 2009, dated 16-4-2009, allowed the appeal preferred by the second respondent upholding the duty demand as well as penalty imposed by it and enhanced the penalty to Rs. 2,90,92,416/-. Aggrieved against the order passed by the 1st respondent, the appellant is before this Court. 4. We have heard the learned Senior Counsel Mr. R. Venkatraman appearing for the appellant and Mr. V. Sundareswaran, learned Standing Counsel appearing for the Department. 5. This Civil Miscellaneous Appeal was filed by the assessee against the order of the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai against the imposition of the duty and penalty the....
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....alent to the amount due have to be paid as noted above. In the circumstances of the case, though duty is to be levied within a period of five years, however, for certain types of issues, extended period of limitation could be invoked. However, invocation of extended period of limitation is possible only in the case of the department establishing fraud. For better clarity, the relevant provision is extracted hereunder : Section 11A of Central Excise Act reads as follows : "Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. - (1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, whether or not such non-levy or non-p....
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.... raised by the appellant and also issuance of show cause notice demanding duty by invoking the extended period of limitation under Section 11A(1) of the Act. Without there being a finding or discussion on the said point by CESTAT, it should not be appropriate for this Court to deal with the issue on merits. 9. Therefore, in the facts and circumstances of the case, we are of the view that instead of disposing the matter on merits, it would be appropriate for us to direct the CESTAT/1st respondent herein to consider the same on the issue of invocation of extended period of limitation as well as the action being initiated after the extended period, invoking proviso to Section 11A of the Central Excise Act. 10. Therefore, withou....