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2004 (8) TMI 109 - SC - Central ExciseDemand - Bart of limitation - Limitation - Suppression of facts - Held that:- Court had concluded that the entire movement of scrap had been recorded in the regular books of accounts and proper documentation was maintained. It appears to us that the observations made in paragraph 10 set out herein above that the Appellants were entitled to get benefit of MODVAT scheme and that therefore there was no justifiable reason to suppress the fact is based on facts i.e. there was no material on record to infer or establish that excise duty had not been levied or paid by reason of any fraud, collusion or any wilful misstatement or suppression of facts or contravention of any of the provisions of any Rules. However, it is regularly urged that this authority lays down that, irrespective of facts, if a party is entitled to get benefit of a MODVAT scheme, then there can be no suppression and the above highlighted observations are capable of such an interpretation. Question whether there is suppression or not is a question to be decided on facts of each case and has nothing to do with available credit or a party having benefit of MODVAT scheme e.g. a party having credit or benefit of a MODVAT scheme may by suppression undervalue goods in order to clear a larger number of goods on his available credit. The above judgment being of two Judges it is not possible for us to take a contrary view. Judicial discipline requires that the case be referred to a Larger Bench to decide whether in every case, where a party has credit or benefit of a MODVAT scheme, it must be presumed that there can be no suppression.
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