AJAY KUMAR MITTAL, J. - (1.) THIS is an application under Section 151 of the Code of Civil Procedure for disposal of the appeal in terms of the order dated 12.9.2013 passed in CEA No.49 of 2012 (M/s Jai Bharat Maruti Lmited v. Commissioner of Central Excise, Delhi III, Vanijya Nikunj, Udyog Vihar, Phase -Gurgaon (Haryana).
(2.) NOTICE of the application was issued to the respondent on 18.12.2013. Mr. Sukhdev Sharma, Advocate appears. At the joint request of learned counsel for the parties, the main appeal is taken up today for hearing.
(3.) THE assessee has preferred this appeal under Section 35G of the Central Excise Act, 1944 (in short, "the Act") against the order dated 27.9.2010 Annexure A.1 in Appeal No.3031 of 2009 -SM passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi, (in short, "the Tribunal'), claiming following substantial questions of law: - i) Whether on the facts and in the circumstances of the case, the Tribunal was justified in upholding the order in original passed by the respondent and by holding that extended period of limitation could be invoked for charging interest under section 11AB in the facts of this case, ignoring the assessee's bonafide action and conduct and the fact that extended period under the proviso to Section 11A and penalty under Section 11AC are based on same prerequisites none of which is attracted in the present case? ii) Whether on the facts and in the circumstances of the case, the Tribunal ought not to have called for the original records of proceedings before the respondent which resulted in the order in original having been passed erroneously and mechanically in haste without proper consideration fairly and objectively of the factual and legal submissions made by the appellant and binding decisions of courts and Tribunals placed before him and ought not to have vacated the impugned order in original? iii)Whether on the facts and in the circumstances of the case, the incorrect and improper order of so called adjudication which could not have been passed on 24.8.2009 when the personal hearing also was only on the same evening at about 5.00 pm that too for a few minutes when nothing was heard, explained or understood from the appellant's representative and therefore the confirmation of such illegal order by the appellate authority without even seeing the original records and the manner of passing orders by the respondent had led to serious injustice and avoidable multiplicity of proceedings for which the Tribunal's order as well as the order in original are liable to be quashed? iv)Whether on the facts and in the circumstances of the case, the Tribunal was justified in not following the decisions of courts and Tribunals placed before it on the question of extended period of limitation not being invokable for levy of duty or interest and thereby passing the impugned order to make out a new case against the assessee which the revenue did not and for this reason also, the impugned order is liable to be vacated? v) Whether on the facts and in the circumstances of the case, the Tribunal ought not to have vacated or quashed the levy of interest under section 11AB for the financial year 2006 -07 in view of the show cause notice having been issued on 4.3.2008 especially because of there being no wilful misstatement or suppression of facts by the appellant in any manner whatsoever? vi)Whether on the facts and in the circumstances of the case, the Tribunal was justified in not following the decisions of the Supreme Court as well as the High Courts as also the Tribunal including also the decisions of Coordinate Benches holding clearly that where the divergent views existing earlier from courts and Tribunals stand resolved by the Supreme Court subsequently, for the period prior to the decision of the Supreme Court, the assessee cannot be found at fault by alleging wilful misstatement of facts by the assessee especially when the assessee has followed the binding decisions of the Tribunal as well as the High Courts which were available before the decision of the Supreme court came to be pronounced? vii)Whether on the facts and in the circumstances of the case, the Tribunal being a final fact finding body at the appellate stage could not have functioned as original authority to give its own findings of fact without records and documents of the revenue placed before it and when no such finding had been given by the original authority, thereby causing grave injustice/prejudice to the appellant for which the impugned order is unsustainable? viii)Whether on the facts and in the circumstances of the case the Tribunal was justified in ignoring the definition of 'relevant date' in section 11A(3) (ii) (b) under which the date of adjustment of duty paid provisionally after final assessment thereof is required to be taken as the only basis for raising a demand if any within the normal period of limitation and the same applies for interest also and the impugned order is unsustainable as being beyond the scope of express statutory provisions in the Act? ;