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Punjab State Container & Warehousing Corporation Ltd. Versus Commissioner of Central Excise, Mumbai

2017 (8) TMI 440 - CESTAT MUMBAI

Short payment of tax - extended period of limitation - case of appellant is that Revenue was aware of the short payment in the year 2004 and therefore, extended period of limitation cannot be invoked - Held that: - the knowledge of Revenue after the evasion has taken place, is irrelevant for invocation of extended period of limitation - appellant arguement on limitation fails. - Adjustment of amount already paid - case of appellant is that they have already paid the entire amount of duty and .....

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And Mr. Raju, Member (Technical) Shri.Arun Mehta, Advocate for appellant Shri.B Kumar Iyer, Supdt. (AR) for respondent ORDER Per : Raju 1. This appeal has been filed M/s.Punjab State Container & Warehousing Corporation Ltd. against confirmation of demand and imposition of penalty under Section 76 of the Finance Act, 1994. 2. Learned Counsel for the appellant pointed out that the rate of service tax was revised from 5% ad valorem to 8% vide notification No.04/2003-ST dated 14/05/2003. Howeve .....

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ave come to the Tribunal. 3. Learned Counsel argued that the Revenue was aware of the short payment and therefore could not have invoked extended period of limitation. For this assertion, he relied on the letter written by Revenue to the appellant dated 16/01/2004 seeking data for the disputed period. He also relied on the reply given by the appellants to the Superintendent of Central Excise, Panvel Division, dated 04/02/2004 where they have submitted the required data. Learned Counsel argued th .....

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the said argument incorrectly. 4. Learned AR pointed out that date of knowledge has no relevance in so far as the invocation of extended period of limitation is concerned. He pointed out that the Commissioner (Appeals) has rightly relied on the decision of Hon ble High Court of Gujarat in the case of Neminath Fabrics Pvt. Ltd. 2010 (256) ELT 369 (Guj). Learned AR argued that there is no evidence that the appellants have paid the said amount of duty and therefore the question of adjustment does n .....

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rt in the case of Nizam Sugar Factory (supra) on which reliance has been placed upon by learned advocate for the respondent was rendered in totally different set of facts wherein when the first show cause notice was issued all the relevant facts were in the knowledge of the authorities. The Court has held that later on, while issuing the second and third show cause notices the same/similar facts could not be taken as suppression of facts on the part of the assessee as those facts were already in .....

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would not come into play and the ordinary the period of limitation would be applicable. 6. In view of the aforesaid decision, it is apparent that the knowledge of Revenue after the evasion has taken place, is irrelevant for invocation of extended period of limitation. In view of the above, the appellant s argument on limitation fails. 7. As regards the arguments of the appellant that they have already paid the said amount it is seen that the Deputy Commissioner in the order-in-original has obse .....

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