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2014 (2) TMI 396 - AT - Central ExciseShort payment of duty - extended period of limitation - Penalty u/s 11AC - Excess of the exemption limit on payment of duty - Held that:- for invoking extended period something positive other than mere inaction or failure on the part of the manufacturer or conscious or deliberate withholding of information when the manufacture knew otherwise, is required to be established - since the expression suppression of fact has been used in the company of such strong words as fraud, collusion or wilful misstatement, it has to be construed strictly and it would not mean any omission, that the Act must be deliberate, that when the facts are known to both the sides, the omission by one to do what he might have done and not that he must have done would not render it suppression. Record also show that besides this, the appellant every month were also addressing a letter to the Department mentioning the quantity and value of the cement cleared during the month and also the particulars of the duty paid through PLA and through Cenvat credit from which it was possible to calculate the quantity of cement cleared upto the month during the financial year. Though during the period of dispute, there was system of self-assessment, from the Board s Circular No. 249/83-96-CX dated 11/10/96 it is clear that even after the introduction of self-assessment system, the ER-1 returns filed by the assessee were required to be subjected to scrutiny by the Range Officer within three months after receipt and during scrutiny, in addition to checking arithmetical accuracy, duty payable and paid, the correctness rate of duty applied to the goods was also required to be checked. Short payment is attributable to lack of due diligence on the part of Jurisdictional Central Excise authorities and not on account of wilful default on the part of the assessee. Therefore, in our view, this is not the case where the extended limitation period under proviso to Section 11A (1) can be applied and, as such, the duty demand is time barred - Decided in favour of assessee.
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