TMI Blog2013 (9) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... the point of limitation - the first appellate authority had only observed that because the details were worked out from the balance sheet, department could not be deprived of invoking extended period of limitation as the balance sheet would be available only by October or November, 2006 - there was no ground for the details or otherwise available in the balance sheets of the previous years - all the details of the transactions which were disputed by the audit party was available in the statutory records like RG-23 Part-I and II, RG-I invoices and monthly returns. Collector of Central Excise v. H.M.M. Ltd.[ 1995 (1) TMI 70 - SUPREME COURT OF INDIA ] - The lower authorities in the show cause notice should put the assessee on charge as to v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at credit under Cenvat Credit Rules, 2004. On scrutiny of the appellant s records, it was found that the appellant did not discharge duty liability on dust powder which arose during the manufacturing process of grinding mills, that they have not included the sales promotion expenses which were charged from the dealers, traders and distributors, cenvat credit was availed on supplementary invoices, collected cost of corrugated boxes and packing materials, availed cenvat credit, packing materials supplied by customers free of cost, non-reversal of credit on capital goods which were rejected, semi-finished goods destroyed in fire and no duty liability was paid and wrong availment of cenvat credit on capital goods supplied as free sample and non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecause the details were worked out from the balance sheet, department could not be deprived of invoking extended period of limitation as the balance sheet would be available only by October or November, 2006. It is his submission that the first appellate authority has come to the conclusion based upon the details in the balance sheet for the year 2005-2006 while the demands in this case is up to September, 2004 only, hence, there was no ground for the details or otherwise available in the balance sheets of the previous years. It is his submission that all the details of the transactions which are disputed by the audit party was available in the statutory records like RG-23 Part-I and II, RG-I invoices and monthly returns and no submission w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is his submission that the extended period of limitation is invocable in this case. 5. We have considered the submissions made on limitation by both sides and perused the records. The issue involved in this case is regarding non-discharge of duty liability on the collection of sales promotion expenses from dealers/distributors, cost of the packing materials separately collected from the buyers and cost of the packing supplied by customers free of cost. The first appellate authority on the question of limitation has recorded the following findings. In this era of self assessment it is the responsibility of assessee to pay duty properly. Only because these details were worked out from balance sheet does not relieve the assessee of his re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paragraphs 6 and 7. 6. Now so far as fraud and collusion are concerned, it is evident that the requisite intent, i.e., intent to evade duty is built into these very words. So far as mis-statement or suppression of facts are concerned, they are dearly qualified by the word wilful preceding the words mis-statement or suppression of facts which means with intent to evade duty. The next set of words contravention of any of the provisions of this Act or Rules are again qualified by the immediately following words with intent to evade payment of duty . It is, therefore, not correct to say that there can be a suppression or mis-statement of fact, which is not wilful and yet constitutes a permissible ground for the purpose of the proviso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtend the period from six months to 5 years. Unless the assessee is put to notice, the assessee would have no opportunity to meet the case of the department. The defaults enumerated in the proviso to the said sub-section are more than one and if the excise department places reliance on the proviso it must be specifically stated in the show cause notice which is the allegation against the assessee falling within the four corners of the said proviso. In the instant case that having not been specifically stated the Additional Collector was not justified in inferring (merely because the assessee had failed to make a declaration in regard to waste or by-product) an intention to evade the payment of duty. 8. It can be seen from the ratio of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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