TaxTMI 
TaxTMI 
2019 (8) TMI 1365
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....nge is to the judgment and order dated 06.12.2007 made by the Custom Excise and Service Tax Appellate Tribunal (CESTAT) disposing of appeal Nos. E/1015/2000 and E/1016/2000. The Excise Department is aggrieved by the reduction of penalty amount from Rs. 5,00,000/- to Rs. 1,00,000/- by the CESTAT. The assessee is aggrieved by the confirmation of demand and imposition of penalty of Rs. 1,00,000/-. Hence, we find that in a sense, there are cross appeals, and therefore, it would be appropriate if they are disposed of by common judgment and order. 3. Excise Appeal No. 28/2008 was admitted on 02.02.2009 on the following substantial questions of law:- "(1) Whether the penalty leviable under Rule 57 1 (1)(iv) of Central Excise Rules 1944....
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....ssessments being barred by the provisions of limitation provided under Section 11A of the Central Excise Act, was specifically raised by and on behalf of the assessee. He submits that it is the case of the assessee that there was no evasion in the sense that the credit which was availed, was never in fact utilized by the assessee. 6. Mr. Srivastava, learned Counsel submits that though there may have been some deviations, from the prescribed procedure, there was absolutely no case of fraud or suppression with any intent to evade Central Excise duty. He points out that, in fact, necessary intimations were sent to the department informing the department very clearly of the procedure which was being adopted by the assessee. For all these rea....
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....the present case. She therefore submits that the appeal instituted by the Department be allowed and the penalty of Rs. 5,00,000/- restored. 10. The rival contentions are fall for our determination. 11. According to us, there is substantial material on record to suggest that the issue of limitation as prescribed under Section 11A of the Central Excise Act was not only raised but was also argued by the assessee before the CESTAT. However, from the perusal of the impugned judgment and order, we find that there is no consideration, much less, any sufficient consideration of this crucial issue which is undoubtedly a jurisdictional issue in a matter of this nature. 12. The records indicate that even after the impugned judgment and order ....
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....nce the crucial jurisdictional issue has not been considered, the impugned judgment and order of the CESTAT will have to be set aside and the matter restored before the CESTAT for fresh adjudication in accordance with law and its own merits. 16. In so far as the appeal instituted by the Excise Department is concerned, the same, will also have to be technically allowed, in the sense that the impugned judgment and order will have to be set aside even on the ground of reduction of penalty amount. The issue of penalty will also be have to be considered by the CESTAT depending upon its findings on the grounds raised by assessee on the question of limitation and merits of the adjudication order. 17. Accordingly, both the appeals are hereby ....