Commissioner of Central Excise, Vs. M/S. Ludhiana Bottling Co. - Court Judgment

Excerpt:
1. vide the above mentioned final order, the appeals of the revenue were allowed following the decision of the larger bench in the case of khanbhai esoofbhai & others vs. commissioner of central excise, calcutta reported in 1999 (30) rlt 519 in which it was held that modvat credit taken in respect of inputs lying in stock as well as in respect of inputs used in the manufacture of final products which have become exempt, would be inadmissible and would require to be reversed. learned advocate shri abishek jain submits that the notice of hearing for the appeal was not received by the assessees and hence they could not argue the plea raised by them before the adjudicating authority that the demand was barred by limitation. he submits that the assistant commissioner had decided the issue on merits and limitation against them while the commissioner (appeals) allowed the assessee's appeal on the merits without going into the time barred aspect and hence the only opportunity the assessee had to argue that even if the issue is decided against of ethem on merits, the question of time bar remained to be considered was before the tribunal. he therefore, prays that the final order may be recalled and the demand be set aside on the ground of time bar.2. the prayer is strongly opposed by the learned dr, shri swatanter kumar who submits that no mistake arises from the final order as the only contention raised by the revenue in its appeals was the non-admissibility of credit and that the issue has been decided in the final order.3. we have carefully considered the rival submissions. we note that this appeal was also listed for hearing along with other appeals before the larger bench and after the law laid down on the legal issue referred to the larger bench, this appeal was listed for disposal in accordance with the larger bench decision. although, the applicants have stated that they did not receive the notice of hearing either before the larger bench of before the single member bench, this submission can not be verified since the appeal files are not traceable in the registry. further, no error arises in not considering the plea of limitation sinces such plea was not raised in the appeal, i am, therefore, of the view that no error arises from the tribunal 'final order and hence reject the rom application.

Judgment:
1. Vide the above mentioned Final Order, the appeals of the Revenue were allowed following the decision of the Larger Bench in the case of Khanbhai Esoofbhai & Others vs. Commissioner of Central Excise, Calcutta reported in 1999 (30) RLT 519 in which it was held that modvat credit taken in respect of inputs lying in stock as well as in respect of inputs used in the manufacture of final products which have become exempt, would be inadmissible and would require to be reversed. Learned Advocate Shri Abishek Jain submits that the notice of hearing for the appeal was not received by the assessees and hence they could not argue the plea raised by them before the adjudicating authority that the demand was barred by limitation. He submits that the Assistant Commissioner had decided the issue on merits and limitation against them while the Commissioner (Appeals) allowed the assessee's appeal on the merits without going into the time barred aspect and hence the only opportunity the assessee had to argue that even if the issue is decided against of ethem on merits, the question of time bar remained to be considered was before the Tribunal. He therefore, prays that the Final Order may be recalled and the demand be set aside on the ground of time bar.

2. The prayer is strongly opposed by the learned DR, Shri Swatanter Kumar who submits that no mistake arises from the Final Order as the only contention raised by the Revenue in its appeals was the non-admissibility of credit and that the issue has been decided in the Final Order.

3. We have carefully considered the rival submissions. We note that this appeal was also listed for hearing along with other appeals before the Larger Bench and after the law laid down on the legal issue referred to the Larger Bench, this appeal was listed for disposal in accordance with the Larger Bench decision. Although, the applicants have stated that they did not receive the notice of hearing either before the Larger bench of before the Single Member Bench, this submission can not be verified since the appeal files are not traceable in the Registry. Further, no error arises in not considering the plea of limitation sinces such plea was not raised in the appeal, I am, therefore, of the view that no error arises from the Tribunal 'Final Order and hence reject the ROM application.