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2023 (3) TMI 1067 - AT - Central ExciseInvocation of Extended Period of Limitation - case involving interpretation of law or not - department was well aware of the facts of the case since SCN was issued for the previous period on the same issue - Five audits were conducted at the factory every year since 1.1.2008 - no intent to evade - HELD THAT:- There is no dispute regarding the merits of the case and the calculation of duty. Therefore, insofar as the directions of this Tribunal in the Final Order dated 29.7.2019 [2019 (7) TMI 1791 - CESTAT NEW DELHI] are concerned, they have been fully complied with. The only question which remains is the invocation of extended period of limitation which was also required to be examined by the Commissioner. The officer is mandated under the Rules to do what the audit may do much later. If the officer, who is an expert in taxation scrutinises the returns as he is mandated to do and calls for any records as he is authorised to call for, any mistakes which may be pointed out by the audit would come to light and an SCN could have been issued under section 11A within the normal period of limitation. Therefore, even if no audit is conducted during the relevant period and some duty escapes assessment, extended period of limitation cannot be invoked for that reason. The check against incorrect self assessment is the scrutiny of the return by the officer and audit is only the second check. Therefore, while the fact that audit checks only some selected documents and not every document as held in the impugned order is correct, this cannot be a ground to invoke extended period of limitation. Unlike audit, the officer receiving the ER-1 returns is required to scrutinise the returns and is empowered to call for any information. While the assessee was required to self– assess duty and file ER-1 return, a check against such self- assessment was the scrutiny which the officers were mandated to do by Rules. Audit is the next level of check against the scrutiny. If the audit points out some wrong assessment which was not pointed out by the officer scrutinising the ER-1 return, the fault lies at the doorstep of the officer. It does not, by itself, establish that the assessee had suppressed any facts. In this case, not only one but several rounds of audit were conducted. Show Cause Notice was issued for the previous period on the same issue by the Revenue. Thus, the department was fully aware of the issue in question, the general marketing pattern of the appellant and it was for the officer scrutinising the returns to have checked the returns and issued SCN within time. The impugned order cannot be sustained as the entire demand is time barred - Appeal allowed.
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