- (1.) Heard the learned counsel for the parties in these appeals.
(2.) Our attention is drawn to the impugned judgment and order passed by CEGAT, West Regional Bench at Mumbai on 29-9-2000. By the said judgment, the two-Judge Bench of the Tribunal, after referring to the larger Bench decision in Jay Yuhshin Ltd. v. CCE, (2000) 119 ELT 718 (Tri) held that the finding of the Commissioner that revenue neutrality is not established by the appellants is factually incorrect and, therefore, the order of the Commissioner is required to be set aside. By the said order, the Tribunal held that since it is a case resulting in revenue neutral situation, therefore, the extended period of limitation is not applicable and the entire demand is barred by limitation.
(3.) Our attention is also drawn to the decision of the larger Bench, a copy of which is annexed to the paper book. In the operative portion of the judgment, the larger Bench of the Tribunal has answered the reference in the following manner: (ELT p. 725, para 13) "(a) revenue neutrality being a question of fact, the same is to be established in the facts of each case and not merely by showing the availability of an alternate scheme; (b) where the scheme opted for by the assesses is found to have been misused (in contradistinction to mere deviation or failure to observe all the conditions) the existence of an alternate scheme would not be an acceptable defence; (c) with particular reference to MODVAT Scheme (which has occasioned this reference) it has to be shown that the revenue neutral situation comes about in relation to the credit available to the assesses himself and not by way of availability of credit to the buyer of the assessess manufactured goods; (d) we express our opinion in favour of the view taken in International Auto Ltd. v. CCE, (2005) 12 SCC 129 : (2005) 183 ELT 239 and endorse the proposition that once an assesses has chosen to pay duty, he has to take all the consequences of payment of duty.";