ORDER

1. The respondent was called upon to show cause by the Collector of Central Excise, Bombay why the duty of Central excise of about Rs 38 lakhs should not be demanded and/or recovered as provided under proviso to sub-section (1) of Section ll-A of the Central Excise Act, 1944 and why penalty should not be imposed on them under Rule 173-Q of the Central Excise Rules, 1944. The Commissioner of Central Excise confirmed the duty demand in the sum of more than Rs 34 lakhs and imposed a penalty of Rs 5 lakhs on the respondent. The period in dispute is January 1987 to August 1988. The aforesaid show-cause notice is dated 30-4-1991.

2. On appeal filed by the respondent, the Customs, Excise and Gold (Control) Appellate Tribunal by the judgment under appeal has set aside the order of the Commissioner of Central Excise on the ground that the MODVAT credit was available to the respondent assessee and on that basis alone coming to the conclusion that there could be no intention to evade a payment of duty and thus the allegation of suppression so as to invoke the larger period of limitation under proviso to the aforesaid Section II-A would not survive. The order of the Tribunal is under cha