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2016 (5) TMI 1123 - CESTAT NEW DELHI

2016 (5) TMI 1123 - CESTAT NEW DELHI - TMI - Period of limitation - extended period of limitation - whether no willful misstatement/ suppression of facts and therefore the extended period was not invokable and the SCN was issued beyond the normal period of one year? - Held that:- Supreme Court in the case of Continental Foundation (2007 (8) TMI 11 - SUPREME COURT OF INDIA ) has observed that when there was scope for entertaining a bonafide doubt the extended period of limitation was not availabl .....

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formation when assessee knew otherwise is required for invoking extended period”. In the light of the foregoing analysis, the allegation of willful misstatement/ suppression of facts is not sustainable against the respondent. Consequently, we hold that the Commissioner was justified in dropping the impugned demand as time barred. - Decided in favour of assessee. - Excise Appeal No. E/545/2007-Ex[DB] - Dated:- 22-4-2016 - MR. S.K. MOHANTY, MEMBER (JUDICIAL) AND MR. R. K. SINGH, MEMBER (TECHNICAL) .....

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was issued beyond the normal period of one year. 2. The Revenue has contended that the respondent did not disclose to Revenue that it was clearing the Mahendra pumps along with their IC Units while claiming it to be a pump set eligible for concessional rate of duty. It did not disclose this fact in the RT-12 Returns also and indulged in this activity deliberately. The Ld. DR referred to the Judgment in the case of Commissioner of Central Excise Vishakhapatnam vs Mehta & Co. [2011 (264) ELT 4 .....

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that i.e. for the earlier period, SCN invoking the extended period can be issued. 4. Per contra, the Ld. Advocate for the respondent pleaded that there was absolutely no willful misstatement/ suppression of facts in this case inasmuch as the Respondent had clearly brought to the notice of Revenue vide its letters dated 20.07.1999 and 20.09.1999 intimating that it was bringing pump from outside and the same would be placed in single carton for assembly with Honda Engine at the dealers premises f .....

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llowed by the respondent. The Ld. Advocate cited the judgment of Nizam Sugar Factory vs Collector of Central Excise, A.P. [2006 (197) E.L.T. 465 (S.C.)], Gujarat Ambuja Exports Ltd. vs UOI [2011 (269) E.L.T. 159 (Guj.)] and CESTAT judgment in the case of Celebrum Technologies Ltd. vs CCE, Chandigarh [2015 (40) S.T.R. 707 (Tri. Del)] to contend when an earlier SCN had been issued (even if for a subsequent period) extended period could not be invoked in the SCN dated 24.09.2004 covering the period .....

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tions of both sides and perused the records. 6. We find that the adjudicating authority dropped the impugned demand as time barred by observing as under in the impugned order: As regards the claim of time bar in respect of demand of ₹ 1,59,78,303/-, it has been contended by M/s HSPPL that on similar issue SCN No. IV-CE(9)A.E./M-II/02/033993 dated 02.05.2003 was issued. M/s HSPPL has claimed that since the same issue was well within the knowledge of the department as early as on 02.05.2003, .....

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dicating authority has relied on the arguments that there was an earlier SCN issued on 2.5.2003 (which covered the period April 2002 to February 2003) and therefore, the whole issue was in the knowledge of the department on 02.05.2003, and therefore, in a subsequent SCN dated 24.09.2004, the extended period could not be invoked. The Ld. Advocate also cited various judgments mentioned earlier to the same effect. A careful scrutiny of those judgments would indicate them to be to the effect that th .....

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f facts in relation to the earlier period. Issuance of earlier SCN for normal period does not change nature of suppression etc. Para 6 of the said judgment is this regard is reproduced below: 6. We find that in the product i.e. PVC coated and laminated fabric manufactured, the appellant use the base fabric cotton Hoseiry Cloth(Knitted cloth) falling under chapter 60 as base fabric. From the Tariff entry it is very clear that under chapter heading 5903 the coated fabric of base fabric of cotton o .....

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fact the product in question is correctly classifiable under chapter 5903.99 and therefore correctly extended the benefit of Notification No. 141/86 CE dated 1/3/1986. under Sr. No 10 of the table and Notification No. 63/86 dated 1/3/1987 under Sr. No. 5 of the table appended thereto. As regard the judgment of Natson Laminates(supra)., Asian Leather Cloth MFG. Co. (supra). and CCE Vs. Entremonde Polyecoaters Ltd(supra). It is observed that in all these judgment the issue involved was that if th .....

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he conclusion that exemption provided to the goods of Chapter 5903.99 is admissible therefore the judgments cited by the Ld. Counsel are distinguished on this ground. As regard the submission of the Ld. Counsel that the show cause notice issued for the period 1/3/86 to 31/1/89 is time barred as appellant had been filing their classification list from time to time and same were approved, hence, there was no suppression of facts and mis-declaration. We observed that in the classification list the .....

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ental officer, we are of the view that though the stock of the goods was verified but from the stock verification officer cannot ascertain whether the base fabric used in the product is falling under Chapter 52 or Chapter 60. Therefore we do not agree with the submission of the Ld. Counsel on this count. We therefore of the view that there is clear suppression of facts and mis-declaration on the part of the appellant therefore extended period was rightly invoked. As regard submission of the Ld. .....

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ued subsequently, nature of suppression and misdeclaration does not get extinguished. We therefore do not agree with this submission of the Ld. Counsel. In view of our above discussion, we are of the considered view that impugned order passed by the Ld. Commissioner is sustainable. The appeal is dismissed. The respondent has also cited several judgments on this aspect. However, a detailed and thorough discussion on this point in the light of the judgments cited by the Ld. Advocate for respondent .....

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