TMI Blog2014 (2) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... possible to calculate the quantity of cement cleared upto the month during the financial year. Though during the period of dispute, there was system of self-assessment, from the Board s Circular No. 249/83-96-CX dated 11/10/96 it is clear that even after the introduction of self-assessment system, the ER-1 returns filed by the assessee were required to be subjected to scrutiny by the Range Officer within three months after receipt and during scrutiny, in addition to checking arithmetical accuracy, duty payable and paid, the correctness rate of duty applied to the goods was also required to be checked. Short payment is attributable to lack of due diligence on the part of Jurisdictional Central Excise authorities and not on account of wilful default on the part of the assessee. Therefore, in our view, this is not the case where the extended limitation period under proviso to Section 11A (1) can be applied and, as such, the duty demand is time barred - Decided in favour of assessee. - Appeal No. 976 of 2005 - Final Order No. 58637/2013 - Dated:- 21-11-2013 - Ms. Archana Wadhwa and Mr. Rakesh Kumar, JJ. For the Appellant : Shri Akhil Gupta, C.A. For the Respondent : Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant company under Section 11AC. Against this order of the Commissioner, this appeal has been filed. The miscellaneous application No. E/M/363 of 2005 has been filed to take note of change of address of the respondent as the unit now comes under the Jurisdiction of Commissioner of Customs and Central Excise, Jammu. 2. Heard both the sides. 3. Shri Akhil Gupta, C.A., the learned Counsel for the appellant, while not disputing the duty demand on merits and also the fact that the quantity of cement on which this duty has been demanded was not eligible for concessional rate of duty under Notification No. 5/1998-CE and its successor notifications, contested this demand on limitation only pleading that while the duty demand is for 1998-1999, 2000-2001 and 2001-2002, the show cause notice has been issued only on 23/1/04 by invoking extended period which is not applicable in view of the facts and circumstances of the case. It was pleaded by Shri Akhil Gupta that throughout during the period of dispute not only the appellant were filing ER-1 returns, wherein the quantity and value of the cement cleared by availing concessional rate of duty under Notification No. 5/1998-CE and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 350/- per M.T. after exceeding the clearances of 99,000 M.T., that this shows that the Department was aware of the fact that the appellant were availing of the exemption under Notification No. 5/1998-CE and its successor notifications and this exemption was not available beyond a particular threshold limit, that when the appellant were filing the ER-1 returns and also by separate communication each month were giving the complete information about the quantity and value of the cement cleared during the month, it cannot be said that the appellant had suppressed the fact of wrong availment of exemption from the Department with intent to evade the payment of duty. He, therefore, pleaded that the extended period under Section 11A (1) is not available to the Department and as such the demand is time barred. 4. Shri V.P. Batra, the learned DR, defended the impugned order by reiterating the findings of the Commissioner and pleaded that when the appellant accept that concessional rate of duty of Rs. 200/- per M.T. was not applicable in respect of clearances beyond 99,000 M.T. in a financial year and when admittedly they continued to clear the cement in excess of 99,000 M.T. in a financia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the part of the manufacturer or conscious or deliberate withholding of information when the manufacture knew otherwise, is required to be established. In the case of Pushpam Pharmaceuticals Company vs. CCE (supra), the Apex Court held that since the expression suppression of fact has been used in the company of such strong words as fraud, collusion or wilful misstatement, it has to be construed strictly and it would not mean any omission, that the Act must be deliberate, that when the facts are known to both the sides, the omission by one to do what he might have done and not that he must have done would not render it suppression. In this case, it is not disputed that every month during the period of dispute, the appellant were filing ER-1 returns, wherein not only the complete information about manufacture and clearance of cement was being furnished, the availment of Notification No. 5/1998-CE and its successor notifications had also been disclosed. Record also show that besides this, the appellant every month were also addressing a letter to the Department mentioning the quantity and value of the cement cleared during the month and also the particulars of the duty paid th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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