- (1.) By way of this order, we shall decide Central Excise Appeal No. 63 of 2014, filed by the assessee and Central Excise Appeal Nos. 59 and 70 of 2014, filed by the Revenue. For the sake of convenience, facts are being taken from CEA No. 63 of 2014. Counsel for the assessee submits that proceedings to revise an accepted return can be validly initiated only if there is suppression of relevant facts. The Tribunal while setting aside penalty has held that the appellant is not guilty of suppression of relevant facts. The Tribunal, however, failed to apply this finding to the duty levied and affirmed the levy of duty. The order passed by the Tribunal is, therefore, contradictory and may be set aside.
(2.) Counsel for the Revenue submits that in his self assessment return the assessee claimed that he is covered by the notification. The assessee was aware that duty was required to be paid but did not deposit duty, thereby proving suppression of material facts. The Assessing Officer has, therefore, rightly exercised jurisdiction within the extended period of limitation i.e., within five years of the assessment. Counsel for the Revenue further submits that the Tribunal having affirmed duty it had no jurisdiction to set aside the penalty. The appeal filed by the Revenue may, therefore, be allowed whereas the appeal filed by the assessee may be dismissed.
(3.) We have heard counsel for the parties, appraised the impugned order as well as orders passed by the Tribunal, the Assessing Authority, the first appellate authority.;