TMI Blog2017 (5) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by him to the Department and the Department did not raise any objection and the Department also did not seek any clarification from them as to why they are clearing goods without payment of duty - Mere omission to give correct information is not a suppression of fact unless it was deliberate to stop the payment of duty - entire demand is time barred - appeal allowed - decided in favor of appellant. - E/1384/2010-SM - Final Order No. 20400 / 2017 - Dated:- 24-3-2017 - Shri S. S. Garg, Judicial Member Shri T. V. Ajayan, Advocate For the Appellant Shri Parashiva Murthy, AR For the Respondent ORDER Per S. S. Garg The present appeal is directed against the impugned order dated 18.5.2010 passed by the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eard both the parties and perused the records. 4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed against the provisions of the statute and by ignoring the judicial precedents on the issue. He further submitted that the appellant were under bona fide belief that clearances to EPCG license holders are allowable without payment of duty made clearances with due declaration as to the said contention in the invoices issued. He further submitted that pursuant to such belief the appellant also indicated the clearances as without payment of duty in the ER-1 return for the month of November 2005. He also submitted that there was no intention to evade payment of duty, only f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilities of the Central Excise officers in ensuring correctness of the duty payment and confirmation of the assessment made by the tax payer continues to be the primary responsibility of the jurisdictional Central Excise officers. In support of his submission, he relied upon the following decisions: i. Macleods Pharmaceuticals Ltd. vs. CCE, Vapi: 2013 (296) ELT 379 (Tri.-Ahmd.) ii. Swastik Engineering vs. CCE, Bangalore: 2010 (255) ELT 261 (Tri.-Bang.) iii. CCE, Bangalore-II vs. Swastik Engineering:2014 (302) 333 (Kar.) iv. Sarita Steel Industries Ltd. vs. CCE, Visakhapatnam: 2011 (272) ELT 572 (Tri.-Bang.) v. CCE, Aurangabad vs. Trans Delta Electricals: 2010 (261) ELT 394 (Tri.-Mumbai) vi. Pahwa Chemicals Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the only issue to be decided in the present appeal is whether extended period of limitation can be invoked in September 2008 to demand the duty on clearances made without payment of duty under invoices during the period November 2005 and reflected in the returns filed as part of clearances without payment of duty under due acknowledgment from the department. Further, I find that in the present case, the appellant cleared the goods under a bona fide belief that the clearances to EPCG licence holders can be made without payment of duty and in the invoices the appellant had mentioned the same and similarly, the appellant had also disclosed this fact in the ER-1 returns filed by him to the Department and the Department did not raise any o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts dues and payable; Cenvat credit availment, valuation etc., this scrutiny must be completed within 3 months and the returns of the units whose annual duty payment is ₹ 1 crore to ₹ 5 crores and more than ₹ 5 crores, are also to be cross checked by the Assistant Commissioner and Additional Commissioner, respectively. (1) Circular No. 249/83/96-CX., dated 11-10-1996 (para 3); (2) Circular No. 311/27/97-CX., dated 15-4-1997 (regarding maintenance of register of scrutiny and reporting progress of scrutiny of ER-1 returns in monthly Technical Report being sent to the Board.) (3) Circular No. 818/15/2005-CX., dated 15-5-2005 issued by C.B.E. C. under Rule 12(3) of Central Excise Rules, 2002 prescribing two sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y invoking extended period under proviso to Section 11A(1) for demand of duty and penal provisions of Section 11AC for indolence on the part of the jurisdictional Central Excise officers. Moreover Apex Court in a series of judgments CCE v. Champher Drugs Liniments reported in 1989 (40) E.L.T. 276 (S.C.); Padmini Products v. Collector reported in 1989 (43) E.L.T. 195 (S.C.); Pushpam Pharmaceuticals v. CCE reported in 1995 (78) E.L.T. 401 (S.C.); Anand Nishikawa Co. Ltd. v. CCE, Meerut reported in 2005 (188) E.L.T. 149 (S.C.); Continental Foundation Jt. Venture v. CCE, Chandigarh reported in 2007 (216) E.L.T. 177 (S.C.) has held that something positive other than mere inaction or non-payment of duty is require ..... X X X X Extracts X X X X X X X X Extracts X X X X
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