((-1-)) HVN IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO. 51 OF CENTRAL EXCISE APPEAL NO. 51 OF CENTRAL EXCISE APPEAL NO. 51 OF 2007 The Commissioner of Central Excise ... Appellant Versus M/s. Patel Aluminium Pvt. Ltd. ... Respondent Mr. R.V. Desai, Sr. Counsel with Mr. R.C. Master, Mr.H.V. Mehta and H.P. Chaturvedi for the Appellant. Mr. Karl Shroff with Mr.B. Amin i/by M/s. B. Amin and Co. for Respondent. CORAM: F.I. CORAM: F.I. CORAM: F.I. REBELLO REBELLO REBELLO & R.S. MOHITE, JJ. R.S. MOHITE, JJ. R.S. MOHITE, JJ. DATED: JANUARY 25, 2008 DATED: JANUARY 25, 2008 DATED: JANUARY 25, 2008 P.C. P.C. P.C. . The Commissioner (Appeals) held in favour of the respondents on merits and on issue of limitation observed asunder : "...Suppression of misstatement with intent to evade payment of duty has not been spelt in the show cause notice...." . Thereafter the Commissioner proceeded to answer the contentions in the following words : "There is force in the appellant’s argument ((-2-)) that they acted under bonafide belief and the modvat credit was availed of by them in full compliance of procedural requirements and the material information was not suppressed. Therefore, the demand made in the show cause notice is also hit by limitation and on this ground alone, the demand can be set aside." . Though Revenue preferred an appeal, in the grounds raised there was no ground in so far as issue of limitation was concerned. The tribunal in its order noted that the appellants herein had not raised any ground challenging the order on limitation and as the same was not challenged held that they did not find it necessary to go into the merits of the case. The demands were held tobe time barred which cannot be reversed in the absence of challenge to the said findings. The appeal was accordingly dismissed. . The appellants are before this court against the said order. The questions of law are as set out in Para 4 of the Appeal memo. . On behalf of the appellants, the learned counsel relied on Rule 10 to contend that they should have ((-3-)) been given an opportunity to have raised the said grounds. We asked the learned counsel to show us from the appeal memo filed before this court or any application made to the tribunal that they had sought an opportunity to raise the ground though it was not found in the appeal memo. The learned counsel fairly admits that in so far as appeal memo before this court is concerned, there is no such averment. The learned counsel points out that the tribunal could have sou motu taken a note itself. Reliance is placed in the judgment of the Supreme Court in Devangere Cotton Mills Ltd. Vs. Commissioner of C. Ex. Belgaum, 2006 (198) E.L.T. 482 (S.C.). On the consideration of the facts therein, though opportunity was sought to raise the ground, the same was not granted. In those circumstances, the Supreme Court held, that though ground was not raised, an opportunity could have been given. . In the instant case, as we have noted earlier, there is clear finding of fact recorded by the Commissioner (Appeals), that action of the respondents was bona fide. This was known to the appellants herein. They chose not to raise the ground challenging that finding. Apart from that no ground was raised in the appeal memo. There is also no averment in the appeal memo before us that they ((-4-)) had asked the tribunal to grant them leave to raise that ground. The tribunal to exercise its sou motu powers or exercise of discretion under Rule 10, must find that the matter goes to the root of its jurisdiction. In the instant case, we find from the order of the Tribunal, that it has noted that a finding of fact has been recorded and in these circumstances, dismissed the appeal. . In our opinion, considering that no opportunity was sought before the tribunal, the question would not arise and consequently dismissed. (R.S. MOHITE, J.) (R.S. MOHITE, J.) (R.S. MOHITE, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.)