J.L. Gupta, J. - (1.) RESPONDENT No. 1 is engaged in the manufacture of motor vehicle parts. It claimed Modvat credit. The adjudicating authority came to the conclusion that the credit had been claimed on the basis of forged/fake invoices. Thus, the respondent was called upon to pay an amount of Rs. 1,52,159.14. The appeal filed by the respondent having been dismissed, it approached the Tribunal. On examination of the matter, the Tribunal came to the conclusion that there was no suppression on the part of the assessee. The demand was barred by time. Thus, the appeal was allowed.
(2.) THE Revenue is aggrieved by the order passed by the Tribunal. It has approached this Court through the present petition under Section 35H(1) of the Central Excise Act, 1944. It prays that the Tribunal be directed to refer the following two questions of law for the opinion of this Court : - (1) Whether RT -12 return filed by Respondent No. 1 and assessed by the proper officer would mean that credit taken by reason of fraud cannot be recovered by invoking extended period under Rule 57 -1 whereby Respondent No. 1 availed such credit on the basis of forged/fake invoices ? (2) Whether the fraud committed by Respondent No. 1 and detected by the Assessing Officer after seeking clarification from the Deputy Commissioner and the assessment made by the Assessing Officer in good faith which was earlier to the detection of fraud amounts to knowledge on the part of the Assessing Officer and merits denouncement of the show cause notice in respect of demand raised? The solitary contention raised by Mr. Cumber, learned Counsel for the petitioner, is that the vehicles, in which the goods are alleged to have been transported from Ludhiana to Faridabad, are non -existent. Thus, the claim that the goods had been actually returned and that the duty had been paid, cannot be sustained.
(3.) THE contention cannot be accepted. Firstly, no such contention is shown to have been raised before the Tribunal. Secondly, even in the petition under Section 35H(1) of the 1944 Act, it has not even been averred that the vehicles, in which the goods had allegedly been transported, were non -existent. In this view of the matter, the plea as raised by the Revenue cannot be sustained.;