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2019 (1) TMI 57 - AT - Central ExciseDutiability - sales tax deferment scheme - foreclosure of the scheme at a discounted rate of 6.5% of the NPV offered by the Government of Andhra Pradesh - whether the demand for Central Excise Duty on the appellant on the amount which has been extended as discount by the Government of Andhra Pradesh on foreclosure of sales tax deferment scheme is dutiable or otherwise? - Held that:- The demands which have been raised by the show cause notice dated 07.05.2010 for the period 2001-02 to 2004-05 is blatantly beyond the mandate given under first proviso to Section 11A(1) of the Central Excise Act, 1944. The said section mandates demand of duty from the assessee, in the case of misstatement or suppression or fraud or collusion even in evasion of Central Excise Duty for the period 5 years from show cause notice. In the case in hand, none of these ingredients appeared to have been brought out in the show cause notice. Be that as it may, since the mandate of first proviso of Section 11A(1) of Central Excise Act only contemplates for the demand up to 5 years from the date of show cause notice, the demands raised on the amount extended as discount by the Government of Andhra Pradesh for the period 2001-02 to 2004-05 is hit by limitation. Demand for the period 2005-06 - Held that:- There is nothing on record which indicates that the appellant herein had wilfully violated the provisions of Central Excise Act and Rules made there under with an intention to evade payment of duty, as it is on record that appellant had during the period filed periodical returns with the authorities - appellant could have entertained a bonafide belief that the discount which has been offered by the Government of Andhra Pradesh on foreclosure of the deferred sales tax scheme is not an additional consideration as during the relevant period - the impugned order is liable to be set aside only on the ground of being hit by limitation. Appeal allowed.
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