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2023 (1) TMI 638 - AT - Central ExciseInvocation of extended period of limitation - it is alleged that the show cause notice was issued on December 09, 2015 without there being any reason for invoking the extended period of limitation contemplated under sub-section (4) of section 11A of the Excise Act - suppression of facts to evade duty or not. Whether for invoking the extended period of limitation under section 11A(4) of the Excise Act, facts had been suppressed by the appellant and even if they had been suppressed then whether suppression of facts is enough or it should be with an intent to evade payment of duty? HELD THAT:- The show cause notice only alleges that the appellant had suppressed facts. It does not allege that the appellant had suppressed facts with intent to evade payment of excise duty. In the absence of any allegation made in the show cause notice that the appellant had suppressed facts with intent to evade payment of duty, the Department could not have invoked the extended period of limitation under section 11A(4) of the Act. This issue was raised by the appellant before the Commissioner (Appeals), but no finding has been recorded. The provisions of section 11A(4) of the Excise Act came up for interpretation before the Supreme Court in PUSHPAM PHARMACEUTICALS COMPANY VERSUS COLLECTOR OF C. EX., BOMBAY [1995 (3) TMI 100 - SUPREME COURT]. The Supreme Court observed that section 11A empowers the Department to reopen the proceedings if levy has been short levied or not levied within six months from the relevant date but the proviso carves out an exception and permits the authority to exercise this power within five years from the relevant date in the circumstances mentioned in the proviso, one of it being suppression of facts. Thus, the suppression of facts should be deliberate and in taxation laws it can have only one meaning, namely that the correct information was not disclosed deliberately to escape payment of duty. The extended period of limitation could not have been invoked. The demand, which covers only the extended period of limitation, therefore, could not have been confirmed - Appeal allowed.
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