TMI Blog2010 (12) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the assessee so as to invoke the extended period of limitation - The Tribunal, was therefore, justified in holding that the show cause notice was time-barred and that no case was made out for invoking the extended period of limitation - Thus, there being no infirmity in the impugned order of the Tribunal, the same does not give rise to any question of law - Hence, the appeal is accordingly dismissed. - 2460 of 2009 - - - Dated:- 9-12-2010 - Harsha Devani and H.B. Antani, JJ. REPRESENTED BY : Shri R.M. Chhaya, Sr. Standing Counsel, for the Appellant. None, for the Respondent. [Order per : Harsha Devani, J. (Oral)]. - In this appeal under Section 35G of the Central Excise Act, 1944 [the Act], the appellant-Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or recovery of unpaid additional customs duty to the tune of Rs. 21,39,320/- and special additional customs duty of Rs. 6,20,403/-, in all, Rs. 27,59,723/- along with penalty and interest. The notice came to be adjudicated vide order dated 15th May, 2008, whereby the duty demand came to be confirmed along with penalty and interest. 3. Being aggrieved, the assessee went in appeal before the Tribunal. Before the Tribunal the learned advocate for the assessee did not dispute the liability to pay the duty but contended that the show cause notice was barred by limitation. The Tribunal, by the impugned order, upheld the said contention of the assessee and set aside the order impugned before it and allowed the appeal on the ground of limitation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Supreme Court in the case of Motiram Tolaram and Anr. v. Union of India and Anr., (1999) 6 Supreme Court Cases 375 = 1999 (112) E.L.T. 749 (S.C.) and more particularly on the contents of paragraph 9 thereof, wherein, it has been held that when under the provision of the Excise Act, an assessee wants to claim benefit of an exemption notification, then, the onus is on him to prove and show that the conditions, if any, which are imposed by the exemption notification have been satisfied. Inviting attention to the impugned order of the Tribunal, it was submitted that the assessee had not disputed that it was required to pay duty, but had contested the same only on the ground that the same was barred by limitation. It was submitted that the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal, after considering the submissions advanced on behalf of the assessee observed that the assessee had filed bill of entry which was assessed by the proper officer, who, never pointed out that the countervailing duty or special additional duty was also required to be paid by the assessee. The Tribunal was of the view that no objection having been raised at the time of assessment of the bill of entry, the assessee could not be saddled with any mala fide intention or suppression so as to justifiably invoke the longer period of limitation. According to the Tribunal, this was the case of mistake or lack of knowledge on the part of the assessee as also on the part of the Customs Officer assessing the bill of entry, in which case, the ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o pay duty at a particular rate. At the time of assessing the bill of entry, it is for the concerned officer to ascertain the actual duty liability. Mere non-mentioning of the serial number under which the goods would fall cannot be equated with suppression, because it was for the concerned officer to even otherwise verify from the description of the goods as to under which item number the same would fall and assess the duty liability accordingly. The concerned officer having failed to do so, the onus cannot be thrown on the assessee. 8. In the aforesaid backdrop, it cannot be said that there was any wilful misstatement or suppression on the part of the assessee so as to invoke the extended period of limitation. The Tribunal, was therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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