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While allowing revenue's appeal on merits, Tribunal did not interfere with findings of lower authority that there was no suppression - Order of Tribunal set aside as issue of limitation is in favour of assessee: HC

By TIOL News Service

CHENNAI, SEPT 09, 2015: THIS is an appeal by the assessee against the order of the Tribunal reported in 2006-TIOL-1336-CESTAT-MAD. Vide the impugned order, the Tribunal allowed the appeal by revenue by holding that the assessee is not eligible for small scale exemption under Notification No 1/93 CE. The assessee was not represented before the Tribunal. However, at the time of allowing the appeal, both the Tribunal and the representative of the revenue did not touch upon the issue of limitation. The assessee had favourable findings on the issue of limitation in the order appealed against by the revenue.

After hearing both sides, the High Court held:

The first appellate authority set aside the finding not only on the basis of the registration certificate but also on the basis of the statement made by the Chairman of the appellant. The relevant portion of para 3 of the order of the first appellate authority requires reproduction. Hence, it is reproduced as follows:-

"I have carefully considered the facts of the case and the submissions of the appellants. I find that the allegation of suppression is not sustainable in view of the fact that all material facts including copy of the technical collaborating agreement and the facts with regard to use of trade marks were disclosed to the department by their Chairman in his statement dated 25.11.95 which was recorded even before the issuance of the registration certificate."

As against this portion of the order of the first appellate authority that there was no suppression, the Tribunal did not record any finding. As a matter of fact, the Tribunal appears to have taken up the appeal after seven years and disposed it of at one stroke.

It is seen from the order of the Tribunal that the finding of the first appellate authority to the effect that there was no suppression of fact, has not been interfered with. If the original authority had invoked the enhanced period of limitation on only one particular ground viz., suppression of fact and the appellate authority had set aside that finding, the larger period of limitation was not available to the Department themselves in view of the fact that the Tribunal did not interfere with the finding of the first appellate authority relating to the only basis on which the enhanced period of limitation was taken recourse to by the Department.

In view of the above, the Tribunal answered the question of law in favour of the assessee and against the revenue.

(See 2015-TIOL-2030-HC-MAD-CX)


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