TMI Blog2011 (4) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner (Appeals) is directed to decide the appeal on merits - Appeal is allowed - 251 of 2005 - - - Dated:- 20-4-2011 - Shri Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. Shri I. Baig, Authorised Departmental Representative (DR) for the Revenue Shri M. Garg, Advocate for the respondents. Per Shri Justice R.M.S. Khandeparkar : Heard the DR for the appellant and the Advocate for the respondents. This appeal arises from the order dated 11.10.2004 passed by the Commissioner (Appeals), Jaipur. By the impugned order, the Commissioner (Appeals) allowed the appeal filed by the respondent and set aside the order passed by the adjudicating authority. The Assistant Commissioner , Jaipur by his order dated 6.7.2004 had co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period i.e 1998-99 to 1999-2000 (upto 2/2000) invoking extended period without mentioning any reason of fraud, collusion or any wilful mis-statement or suppression of facts or contravention of or any of the provisions of the Act. Now it is well settled that once facts came into the knowledge of Department and show cause notice was issued, then subsequent show cause notice invoking extended period cannot be issued. I further find the case of M/s Neyveli Lighting Corp. Ltd. Vs. C.C.E.- 1992 (58) ELT 76 is squarely applicable in the instant case. Wherein it was held that Demand-Limitation Extended period of limitation not applicable when demand for subsequent period raised under normal limitation and demand for earlier period raised subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id not file the required Price Declaration and Marketing pattern with intention to evade central excise duty and suppressed the facts. It resulted in short payment of central excise duty to the tune of Rs.1,10,554/- during the year 1998-1999 and 1999-2000 (upto 2/2000). The duty short paid is recoverable from the assessee under proviso to Section 11A(1) of Central Excise Act, 1944 . 5. Perusal of the show cause notice clearly stated that in terms of the Rules in force, the assessee was required to make certain declaration and disclose certain facts. However, the same were suppressed with the intention to evade payment of duty. Apparently, therefore, the extended period of limitation was sought to be invoked on the ground that there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ful mis-declaration or wilful suppression. There must be some positive act on the part of the party to say that there was wilful mis-declaration or wilful suppression in that regard. All the facts are required to be considered by the adjudicating authority. Undoubtedly, the assessee can very well place before the concerned authority that there was no mis-declaration or wilful suppression in the matter and the Department can also counter the same. All these aspect can be looked into in the course of hearing in the proceedings and they may not form part of the show cause notice itself. In the case in hand, the appeal was allowed by the Commissioner (Appeals) has merely recorded that show cause notice did not disclose the ground for invoking e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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