Case: Commissioner Central Excise Vs. M/S.United Spirits Ltd

The respondent is a manufacturer of Indian Made Foreign Liquor (IMFL) and is a registered owner of several known brands of IMFL. The respondent, as the facts have been unfolded, alsofood flavours at its unit at Shayura Orchards, Kumbalagodu, Bangalore and the present appeal pertains only to food flavours.2. The respondent has got its own distillery units at various places. In addition, it has entered into agreements with various manufacturers of liquor who had their bottling plants and also appropriate licences to manufacture liquor. With these liquor manufacturers the respondent had entered into Usership Agreement whereby they were permitted to use the trademark of the respondent on IMFL manufactured by them on the terms and conditions mentioned in the agreement. The respondent had also entered into another agreement with the liquor manufacturers called the manufacturing agreement which provides for manufacture and sale by liquor manufacturers of IMFL under thebrand names or its purchase by the respondent on the terms and conditions mentioned in the agreement. It is stipulated in the agreement that sale and purchase of IMFL under the agreement shall be on principal to principal basis. These liquor manufacturers were to purchase raw materials such as rectified spirit, extra neutral alcohol and blending and packing materials in accordance with the standards and specifications set forth in the agreement and from the approved suppliers. It was also provided in the manufacturing agreement that modalities of price payable by the respondent to the liquor manufacturers for sale of IMFL and the price was to be the aggregate of cost of rectified spirit, extra neutral alcohol, blending and packing materials, storage, insurance premium and all manufacturing costs and expenses as mentioned in the agreement. In addition, the liquor manufacturers were entitled to the margin of profit called service charges in the agreement. The total price so paid to the liquor manufacturers was the sole consideration for the sales and such price is known as Ex-Distillery Price (EDP), which includes all costs, charges and expenses incurred by the liquor manufacturers for manufacture of IMFL as well as their margin described as service charges. The IMFL manufactured by liquor manufacturers was affixed with the brand names owned by the respondent. It provided the manufacturing logo, quality control, product research, etc. The respondent provided technical know-how/expertise to liquor manufacturers for manufacture of IMFL.3. The liquor manufacturers sell IMFL manufactured by them either to the respondent or to the customers identified by the respondent or to the government-owned corporations. The sales personnel of the respondent contact the customers, book orders, collect outstanding amounts from the market, collect statutory forms like C-Forms, Excise Verification Certificates, Permits, etc. and forward the same to the liquor manufacturers. The respondent would promote its brands through marketing teams and operation of various promotional schemes and advertisements and all expenses with regard to the same are incurred by the respondent. The liquor manufacturers were entitled to receive EDP which include the actual cost of IMFL manufactured by them plus the profit margin. The prices were negotiated by the respondent even when the goods were sold by the liquor manufacturers to such buyers and they would bill by such buyers at the rates negotiated and determined by the respondent.4. The respondent, however, asserts that such rates/prices negotiated with outside buyers were either more or less than the EDP with certain consequences, namely, (a) if the selling price to outside customers is more than EDP, the difference was paid by the liquor manufacturers to the respondent by calling it under different nomenclature like royalty or service charge; (b) if the selling price to outside customers was less than EDP, the difference/shortfall is borne by the respondent and paid to the liquor manufacturers; and (c) if the price realized from outside buyers is more than EDP, the difference accrued to the respondent.5. As has been stated earlier, the respondentfood flavours at its food flavor manufacturing unit at Bangalore. On the said aspect, the respondent asserts that the food flavours wereby mixing of various essences (odoriferous substances) purchased by the respondent from different suppliers.6. Food flavours it is accepted play a role in the flavor profile of the liquor. Food flavours are not used in all brands of IMFL. There are certain brands of IMFL in which no food flavours are used and wherever they are used in IMFL, the percentage is very low ranging from 0.0001% to 00019% per litre. However, it is not the case of the respondent, that food flavours do not matter in the IMFL business.7. Food flavours were supplied by the respondent to their IMFL manufacturing units and also sold to liquor manufacturers who were manufacturing IMFL under manufacturing/usership agreements. Food flavours were also sold to third party manufacturers of IMFL. The liquor manufacturers under the manufacturing agreement would use food flavours in such proportions as identified by the respondent and the blending proportion was maintained as a trade secret of the respondent.8. The respondent stands registered under the Central Excise Act, 1944 (for short,) for manufacture of food flavours falling under Sub-Heading No. 3302.10 of the Central Excise Tariff since 1994 and holds the Central Excise Registration Certificate No. 8/94. Food flavours manufactured by the respondent have been always cleared on payment of central excise duty. As a procedure, the respondent used to file price lists/declarations from time to time declaring the assessable value of food flavours in accordance with law. The assessable value included the entire cost of raw material, labour cost, overheads and profit margin and were cleared from the factory on payment of central excise duty. The price of food flavours supplied to the respondent owned IMFL manufacturing units, liquor manufacturers and to other independent IMFL manufacturers, it is asserted by the respondent, did not vary and remain identical.9. The royalty paid to the respondent by the liquor manufacturers, as asserted, is the difference between their selling prices of IMFL to outside buyers and the EDP of such IMFL. As pleaded, the payment of royalty has no nexus or connection with the food flavours. There are several brands of IMFL where no food flavour was supplied by the respondent to liquor manufacturers. However, royalty on the difference between the selling price of IMFL and EDP was still paid. The respondent claims that there were several instances where food flavours were sold and used in IMFL but no royalty was received. In those cases the selling price of IMFL was lower than the EDP and rather than receiving royalty, the respondent had borne the shortfall and reimbursed the same to liquor manufacturers. On this ground, the respondent intends to put forth the stand that royalty was solely relatable to the higher selling prices of IMFL over and above EDP and has nothing to do with food flavour. The food flavours were not used in IMFL products like Signature Whisky, Centenary Whisky, Single Malt Whisky, etc. which were manufactured without using food flavours. In respect of the same, the liquor manufacturers manufacturing the said brand were paying royalty to the respondent, that being the difference between their selling price of the said brands and theirthis juncture, it is necessary to state that revenue issued a show cause notice on 11.04.2000 on the ground that the respondent-assessee received additional consideration from its franchisees in the form of royalty for supplying food flavours which were essential ingredients of the IMFL manufactured by the franchisees. The proviso to Section 11A of the Act was invoked by the adjudicating authority and it was propose to re-determine the assessable value of food flavours by including the royalty received by the assessee. The differential duty demanded for the period April, 1997 to March, 2009 was 35,45,865,860/-. Penalties were proposed on the unit and on the Senior Manager (Taxation) and interest was also levied. The adjudicating authority confirmed the demand vide his order dated 29.08.2002. The respondent approached the Customs, Excise and Service Tax Appellate Tribunal (for short,which in its order dated 08.07.2003 remanded the matter to the learned Commissioner as certain invoices of sales were produced before the tribunal which were not considered by the concerned Commissioner. While remitting the matter, the tribunal observed that as the matter was being remitted, the issue of limitation and such other issues were kept open for the adjudicator to re-determine and pass an appropriate order granting the opportunity to the parties for effective hearing. The issue of penalty was also kept open.11. After the remit, the adjudicating authority passed an order on 27.02.2004. It placed reliance on the decision in Pepsi Foods Ltd. v. Collector of Central Excise, Chandigarh (2005) 9 SCC 28  ), and held that the royalty from the various units under the manufacturing agreement deserve to be included in the assessable value of the food flavor supplied to them and accordingly confirmed the demand under proviso to Section 11A of the Act. Equal amount of penalty was imposed under Section 11 AC and interest under Section 11AB was also levied. A penalty of Rs. 3,00,000/- was imposed on the Senior Manager (Taxation) under Rule 26 of the Central Excise Rules, 2002.12. Before the tribunal, it was contended by the assessee that it purchased duty paid essences from various suppliers and simply mixed them by a process of manual mixing in the proportion developed by the respondent and which was kept as a top secret and the mere process of manual mixing of the essence did not amount to manufacture; that though the said issue was raised before the jurisdictional Assistant Commissioner on 18.02.2000 and a prayer was made to consider their plea that the food flavour produced by them was not excisable and, pass an appropriate order, the concerned authority did not respond to the same and thereafter, the assessee informed the department that till a final decision was taken, the duty would be paid under protest. It is further contended that food flavours were odoriferous compounds and the quantum of food flavours used in IMFL wherever used were very negligible ranging from 0.0001% to 0.0019% per litre of various IMFL products and such use had no relevance in the marketability of IMFL product nor its final market price. Referring to the letters dated 18.02.2000 and dated 04.09.2001 wherein the assessee had taken a stand that mixing of duty paid flavours would not amount to manufacture. It reiterated the stand that it was not a manufacture on the basis of the decision rendered in Union of India & Ors v. Delhi Cloth and General Mills Co. Limited and Others (1997 ELT (J199)SC). Reference was also made to the order passed by the Commissioner, Central Excise, Hyderabad who vide his letter dated 22.09.2003 had held that the mixing of duty paid food flavours could not result in emergence of a new product and the resultant essence which comes into existence in the premises of M/s. Shaw Wallace Co. (SWC) does not answer the test of marketability and as the facts are identical in the case of the assessee, the same should have been followed by the jurisdictional Commissioner. To bolster the said stand, reliance was placed on Delhi Cloth and Generals Mills Co. Limited (supra), South Bihar Sugar Mills Limited & Anr. Etc. v. UOI & Anr, Etc (1978 ELT (J 336), and Tata Chemicals Limited v. R.M. Desai, Inspector, Central Excise, Mithapur & Others, Moti Laminates Private Limited v. CCE (SC) (1995 (76) ELT 241  ), Kilpest India Limited v. CCE (Tri.) (1999 (108) ELT 786), XI Telecom Limited v. Supdt. Of Central Excise, Hyderabad(AP-DB) (1999 (105) ELT 263), and CCE v. Jagatjit Industries (SC) (2002 (141) ELT 306  ).13. It was further argued that in certain cases, the flavours which were not bought are not even mixed but were supplied directly to the bottlers, only the labels were changed in order to maintain secrecy and such an activity could not be regarded asinasmuch as under Chapter Heading 3302.10 re-labelling does not amount to manufacture. It was argued that mixing of flavours does not bring into existence a new product and even after mixing flavours, the resultant products still remains to be a flavour only. Attention of the tribunal was invited toCircular No. 247/81/96-CX dated 03.10.1996 clarifying that mixing duty paid paints to obtain paint in different shade would not amount to manufacture. Further submission before the tribunal was that flavours were either mixed or supplied in the form in which they were purchased to the bottlers and cannot be marketed to anyone else and no other manufacturer would buy these flavours, for they were meant only for use in the product manufactured for the assessee.14. Commenting on the nexus between the royalty and the price of food flavours, it was canvassed before the tribunal that the royalty and service charges were received by the assessee for use of the trade mark and for marketing services provided by it to the contract bottling units and even though flavours were supplied to independent manufacturers, neither royalty nor service charges were received from them and hence, the royalty bill had no nexus with the price of the food flavour. That apart, it was argued that the assessee sold food flavours to Contract Bottling Units who employed them to manufacture IMFL products or to different other brand owners to whom they were paying royalty and service charges. However, the other brand owners paid only the price of flavours to the assessee and this would be indicative of the fact that the royalty had no nexus with the price of the flavours. Additionally, it was propounded that material was purchased before the concerned Commissioner showing that assessee had sold some kind of flavour to certain distilleries with whom there was no bottling agreement nor there was any receipt of royalty or service charges because the contract unit had not applied the brand of the assessee nor secured services of the assessee for marketing and in such a case, the Commissioner could not have asserted that the agreement was for sale of flavour and receipt of royalty and service charges. Reliance on the Pepsi Foods Ltd. (supra) was seriously criticised before the tribunal as the ratio laid down was not applicable to the case at hand. Before the tribunal the learned counsel for the assessee had drawn attention that the manufacturing agreement and usership agreement to highlight certain aspects, to draw distinction and the adjudicating authority could not have proceeded to allocate the entire receipts to the value of food flavours alone without any basis. Criticising the invocation of the jurisdiction under Section 11A of the Act, it was contended that there was no suppression on the part of the appellants as the factum of payment of royalty was known to the department and it was clear from the note of the Range Officer to the Deputy Commissioner which clearly laid down that the amount paid towards royalty was only for use of the brand name for sale of flavour and prior to the issue of show cause notice, there was an audit inspection on 28.03.2001 and the assessee was asked to clarify various points raised which had been clarified vide letter dated 28.04.2001 and all these aspects had not been taken into consideration while invoking the jurisdiction. It was also put forth that as royalty had no nexus with the price of food flavours, the assessee was not expected to declare it and, therefore, it could not be treated as suppression. That apart, at the time of audit objection even the Range Superintendent was of the view that there was no nexus between the royalty received by the appellant and the price of food flavours sold by the assessee and, therefore, in the obtaining circumstances, the notices were clearly barred by time.15. The stand and stance put forth by the assessee was controverted by the revenue contending, inter alia, that the department had raised the question of excisability of the product in question, when it found the modification of stay order Nos. 838 and 839/2004 dated 10.08.2004 by the High Court. It was also urged that there was an earlier proceeding in 1995 relating to food flavour and the case was adjudicated by the then Commissioner, consequent upon which the assessee had started paying duty and hence, excisablity of the product in question was never an issue at all as the conduct of the assessee would reflect. Reference was made to Entry 3302 in the Tariff and 3302.10 to highlight that the tariff itself recognizes mixtures of odoriferous substances as excisable product and, hence, it could not be said that no manufacture was involved in the mixing of the essences to produce such food flavours. It was urged that goods to fit into the termmust be capable of being bought and sold in the market and to be known as such. In that regard, placing reliance on Bhor Industries Ltd v. CCE, Bombay (1989) 1 SCC 602  ), Union Carbide v. CCE (1986 (24) ELT 169 (SC), Moti Laminates Pvt. Ltd. & Ors v. CCE, Ahmedabad (1995) 3 SCC 23  ), Union Of India & Others v. Sonic Electrochem (P) Ltd. and another (2002) 7 SCC 435  )and CCE, Chandigarh-II v. Jagatjit Industries Ltd. (2002) 3 SCC 614  ), it was canvassed that in the case at hand the food flavours manufactured by the assessee were marketable as evidenced from theadmissions that it has been selling food flavours to other independent bottlers who were not manufacturing the IMFL brands of McDowell but their own brands which establish marketability of the product. It was further argued that the inputs were essences and once they were mixed or prepared, they lost their original identity. It was also urged that though the input and finished goods were under the same tariff heading, still there was manufacture and the finished goods were having distinct, separate and identifiable function, with reference to the product, i.e., IMFL. The further stand was that mixing amounts to manufacture as has been laid down in Gopal Zarda Udyog v. CCE, New Delhi (2005 (188) ELT 251 (SC), O.K. Play (India) Limited v. CCE, New Delhi II (2005 (180) ELT 291 (SC), Nestle India Limited v. CCE, Chandigarh II (2004 (169) ELT 315 (Tri  -Del), T.N. State Transport Corporation Limited v. CCE, Madurai (2004 (166) ELT 433 (SC), Kothari Products Limited v. Government of Andhra Pradesh (1998 (98) ELT 315 (AP), CCE, Guntur v. Crane Betel Nut Powder Works (2005 (187) ELT 106 (Tri  -Bang), and Henna Export Corporation v. CCE (1993 (67) ELT 907 (Tribunal). The revenue further contended that as per Section 4 of the Act, the assessable value depends on the nature of transaction and each price in a transaction was an assessable value and it cannot be compared if the type of transaction was different. The assessee received royalty charges from buyers who were contract bottling units and separate assessable value was computable for these types of customers and in such cases, the royalty charged by the assessee from the buyers has to be treated as additional consideration.16. After noting down the submissions of the learned counsel for the parties, the tribunal adverted to the issue of nexus between the royalty and the price of food flavours. The tribunal clearly stated that in the year 1995, the department had proceeded against the assessee for non-payment of central excise duty on the food flavours produced by them and the Commissioner confirmed the demands raised and at that time, the excisability of food flavours was not questioned by the assessee. After the adjudication order dated 30.01.1995, the assessee was clearing the goods on payment of duty. During 2001, the departmental audit raised certain objections with reference to the receipt of certain amounts towards royalty, service charges, etc. from the contract bottling units engaged in the manufacture of IMFL and according to the audit, the royalty charges should be added to the value of the food flavour sold to the contract bottling units. At that juncture, the assessee gave justification for non-inclusion of royalty charges. The tribunal, as the impugned order would reflect, has adverted in detail to the justification given by the assessee before the adjudicating authority which was basically founded on the conditions set out in the agreement that royalty was payable by the manufacture for use of the brand name and that the royalty had no relevance with the goods or various inputs that go into the manufacture of these goods. It was also set forth that the brands of the company had their own value and the royalty receivable from the manufacturer was primarily on account ofbrands of finished goods, namely, IMFL viz. No. 1 Brandy, No. 1 Whisky, Diplomat Whisky, Premium Whisky, Dry Gin, etc. It was also contended that the audit party had erroneously mis-interpreted the concept of royalty as one which was capable of being subdivided into and allocable to various manufacturing inputs, for it is neither feasible nor a correct procedure to apportion the royalty which was accruing to the company on thebrand image. It was also contended that such an understanding would defeat the purpose of the agreement. Though such a stand was explained by the assessee, yet the department was of the view that the royalty should be added to the assessable value and consequently first show cause notice dated 11.04.2002 was issued. The tribunal thereafter chronologically analysed the facts and order of remit and the de novo order and perused the relevant agreements of the appellants with the CBUs. On scrutiny of the agreements, the tribunal found that there were two agreements, one is called the Manufacturing Agreement and the other is Usership Agreement. As per the terms and conditions of the agreement, the products were to be manufactured by the second party would include the products whose trade mark was owned by the assessee-appellant before the tribunal and any other associate company of it. The second party to the agreement was required to purchase blending and packing materials from such suppliers specified by the assessee and above condition was for the purpose of ensuring quality specification. The agreement defined the blending material. The tribunal referred to the definition ofnd opined that the said definition includes food flavours. It referred to para 18 of the agreement which stipulates that during the currency of the agreement, the second party (as pointed out by the tribunal) Gemini Distilleries (Tripura) Pvt. Ltd. (GDPL) shall not use trade mark to or adopt any trade mark similar to any of the trade marks on or in connection with any product. On that basis, the tribunal opined that on careful reading of the agreement reveals that the assessee has good control over the manufacture of IMFL by GDPL and it ensures the quality of the product, which bears the trade mark of the assessee. Referring to the usership agreement, the tribunal observed that the proprietor was the assessee and the user was GDPL and according to the said agreement, at the request of the user, the proprietor had agreed to permit the user to use the trade marks in respect of the goods on the terms and conditions mentioned in the agreement. The tribunal referred to para 12 of the agreement which postulates that in consideration of this licence, the user shall pay to the proprietor such sum per case manufactured of the goods as may be mutually agreed upon by the parties from time to time and the consideration shall be paid by the user by the following month. It further observed that though the word royalty has not been used in the agreement, it was clear that the sum mentioned in para 12 of the agreement refers to royalty and the royalty was for the use of trade mark and there was no indication whatsoever to infer that the royalty was paid for supply of food flavour. It took note of the fact that food flavour was one of the blending materials and not the sole blending materials sold by the assessee to the CBU and hence, prima facie, there does not appear to be any close nexus between royalty and the food flavour.17. Be it noted, the assessee before the tribunal highlighted that there were three types of transactions, namely, receipt of royalty and also supply of food flavours; royalty was received though there was no supply of food flavours; and royalty was not received even though there was supply of food flavours. Accepting the said submission, the tribunal heldappellants took us through the various documents and showed us that there is practically no difference in price in respect of sales to independent buyers and the prices at which food flavours are sold to CBUs. This fact clinches the issue. It is very clear that there is no nexus between the royalty and the food flavours. The adjudicating authority has relied on the Apexdecision in the Pepsi case. In our view, the ratio of the above decision should not have been blindly applied as done by the adjudicating authority. In the Pepsi case, both the concentrate and the final product are excisable which is not the case in the present appeals. The final product here is IMFL for which royalty is paid. IMFL is not subjected to Central Excise duty. In the Pepsi case, the concentrate is the most essential ingredient of Pepsi Cola whereas in the present case, it is not so. There are certain brands of IMFL which do not require any food flavour. In the Pepsi case, the concentrates are sold only for the franchisees. In the instant case, the appellants have sold food flavours to independent manufactures of IMFL who will not be using the brand name of the appellants. Such independent manufacturers would not pay any royalty. In the Pepsi case, an express prohibition restricting the bottlers to purchase the concentrate from any other source was there. No such express prohibition is there in the present agreement. It was further pointed out by the appellants that there are instances wherein the appellants have paid an amount to bottlers when the sale price of IMFL is much below the ex-distillery price. It is further seen that apart from food flavour, the appellants supplied other blending materials to these CBUs. In these circumstances, the entire royalty paid cannot be attributed to the food flavour whose cost is only 0.45% according to the appellants. Further we find that even in 2001, at the time of audit inspection, the appellants have taken a firm stand not only regarding the includibility of royalty but also the question of very excisability of the food flavour itself. In these circumstances, there is no justification for alleging suppression of facts to invoke the larger period. Hence the Show Cause Notice dated 11.04.2002 and 08.03.2004 are clearly time barred. For the above mentioned reasons, the royalty has no nexus with the price of the food flavour and hence, not includible in the assessable value. Moreover, the first two Show Cause notices are time barred as there is no suppression of facts.After so stating, the tribunal addressed the issue pertaining to excisability of food flavours. It took note of the fact that there was purchased duty paid odoriferous compounds called essences and these essences were mixed manually to obtain food flavour. In what proportion and which essences were to be mixed has been kept a trade secret and different brands of IMFL require food flavour of different profiles. In order to ensure the quality consistency in the various brands of IMFL, the production of food flavour was centralized at Bangalore which does not use power. The tribunal referred tocircular dated 22.11.1999 wherein it has been clarified that agarbati manufacturing process involving simple mixing of a few aromatic chemicals with the base oil in a container in liquid form, which was mixed directly with the dough or applied on agarbati in the required proportion used for rolling of agarbati is not excisable product and, therefore, no duty was leviable on such compounds during the course of manufacture of agarbati. It was urged before the tribunal that the fact situation in the case of assessee was similar, as has been clarified in thecircular in respect of agarbati. It is further urged that there was a simple mixing of essences of different flavour profile and the food flavours produced by the assessee are exclusively used for making their brands of IMFL in their own units and contract units and it cannot be sold in the market as such. The tribunal posed a question whether the process of mixing of essences results in a distinct commodity, which was different from the original inputs. In that context, it heldfind that both the essences and the resultant product food flavour fall under the same Tariff Heading. Since different proportion of the ingredients give different flavours to the resultant product, we cannot say that a ingredients give different flavours to the resultant product, we cannot say that a completely distinct product emerges. The comparison with agarbathi mention inCircular is justified.Circular dated 03.11.1996 deals with the process of tinting of duty paid base white Paint with duty paid strainer to obtain paint of different shades. It has been clarified that the above process does not amount to manufacture on the ground that the process of tinting does not bring about any new commodity with different commercial identity as the resultant emulsion/enamel point and hence, it may not be appropriate to consider this process as amounting to manufacture. While clarifying the above position, the Board has applied the ratio of the classic judgment of the Apex Court in the DCM case wherein it has been held thatimplies change, but every change is not manufacture and yet every change in an article is a result of treatment, labour and manipulation, but something more is necessary and there must be transformation; a new and different article must emerge having distinctive name, character andIn another Circular dated 13.07.1992, the Board has clarified that conversion of plain plastic granules into coloured plastic granules would not amount to manufacture. In all these cases, the commercial identify of the ingredients and the finished product remained the same. In the present case also, the process of mixing two or more essences in certain proportions does not bring into existence any new product. The essence remained essences only and because of the different proportion, a distinct flavour is imparted to the resultant product. That cannot make the process as manufacture.To arrive at the said conclusion, it placed reliance on CCE Chennai v. Fountain Consumer Appliances Limited 2004 (171) ELT 329 (Tri  -Chennai), Tega India Limited v. CCE, Calcutta II (2004) 2 SCC 727  ), State of Maharashtra v. Mahalaxmi Stores (2003) 1 SCC 70  ), and CCE Chennai v. Titanium Equipment & Anode Manufacturing Co. Ltd. (2002 (142) ELT 162 (Tri-Chennai).

Court's reasoning:
32. In the case at hand, as we find from the order of the tribunal the exact nature of the process undertaking and how mixing is undertaken and the process involved is not discernible and has not been ascertained and commented. It remains ambiguous and inconclusive. The respondent claims that about 26% of the sales of odoriferous substances were brought from third party and sold without any modification or process. These are all questions of fact which must be first authenticated and the actual factual position validated. The tribunal has answered the question in favour of the respondent without the background check as to the actual process involved and undertaken. Different flavours may have different processes.33. The third issue relates to the issue of limitation. The tribunal has held that certain show cause notices are barred by limitation. Mr. Bagaria, learned senior counsel has submitted that the said conclusion is absolutely flawless, if the dates are taken into consideration. For the aforesaid purpose, he has commended us to the decision already referred to hereinabove. As we notice, the tribunal on this score has also not scrutinized the dates appropriately, but has returned a cryptic finding.34. In view of the aforesaid analysis, we are constrained to remit the matter to the tribunal for reconsideration of the aforesaid aspects on the basis of observations made hereinabove and the law in the field. However, we may proceed to state that we have not expressed anything on the merits of the case including the imposition of penalty and interest. We expect the tribunal shall advert to each and every facet in detail so that this Court can appropriately appreciate the controversy.