M/S Bloom Packaging Pvt.Ltd vs Commissioner, Central Excise & Service ...
- Case No.Appeal No.E/285/2012
Ratio decidendi
The rule this decision rests on
A plea of limitation, though not raised before the adjudicating authority, may be raised for the first time before the Appellate Authority where it is a pure question of law. Whether a demand is barred by limitation, where the determination depends on the facts as recorded, is a matter of fact that must first be examined by the adjudicating authority, which must hear the assessee before deciding it.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Appeal No.E/285/2012 [Arising out of OIA No.CS/172/DMN/NDMN/2011-12, dt.20.01.2012, passed by Commissioner (Appeals) Central Excise & Service Tax, Vapi]
M/s Bloom Packaging Pvt.Ltd Appellant
Vs
Commissioner, Central Excise & Service Tax, Daman Respondent
Represented by:
For Appellant: Shri Rahul Gajera, Advocate For Respondent: Shri K. Sivakumar, Authorised Representative
For approval and signature:
Honble Mr. P.K. Das, Member (Judicial)
1. Whether Press Reporters may be allowed to see the No Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen the order?
4. Whether order is to be circulated to the Departmental Yes authorities?
CORAM:
HONBLE MR. P.K. DAS, MEMBER (JUDICIAL)
Date of Hearing/Decision:27.05.2015
Order No. A/10691 / 2015, dt.27.05.2015
Per: P.K. Das
Heard both the sides and perused the records.
2. The learned Advocate on behalf of the Appellant submits that there is a demand of duty for the period 2004-05 by show cause notice dt.16.04.2010 which is beyond the extended period of limitation of 5 years. He fairly submits that this issue was not raised before the lower authorities. It is a question of law and can be taken up before the Appellate Authority. In support of his contention, he drew the attention of the Bench to the copy of ER-1 return filed by the Appellant during the relevant period. I find that the ground of limitation a question of law, can be raised before the Appellate authority. It appears from the records that the demand was raised beyond the period of 5 years. However, this is a matter of fact, which is required to be examined by the lower authorities.
3. In view of the above discussion, the Adjudicating authority is directed to examine as to whether the demand of duty was raised beyond the period of 5 years. Needless to say that the Adjudicating authority shall give proper opportunity of hearing, before passing order. The appeal is disposed of with the above observations.
(Dictated & Pronounced in Court)
(P.K. Das) Member (Judicial)
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