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2023 (8) TMI 697 - AT - Central ExciseExtended period of limitation - short payment of duty - suppression of facts or not - case of Revenue is that short payment of duty came to light only when the audit was conducted - HELD THAT:- As per Section 11A of CEA, extended period of limitation can be invoked only in case of fraud, collusion, willful mis-statement, suppression of facts or violation of the Act or Rules with an intent to evade payment of duty - It is a well settled legal position that suppression does not mean mere omission, but a positive act of suppressing facts with a willful intent. In this case, the Department seeks to attribute this intent to the appellant because the Department itself chose not to scrutinize the returns based on Departmental instructions. Had the Department scrutinized the returns the alleged short payment would have come to light. The Department is seeking to use its own inaction as the basis to impute the motive of suppression of facts with intent to evade on the appellant. This cannot be permitted. The Department’s inaction cannot be the basis for invoking extended period of limitation, let alone basing such inaction to impute motive to the appellant. It is also found that the appellant was supplying the goods to its own sister unit and, therefore, every rupee which the appellant paid as duty would have been available to its sister unit as Cenvat credit. Therefore there cannot be any intention to evade. The entire demand is time barred and neither the demand of duty nor the interest nor the penalty can be sustained - Appeal allowed.
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