TMI Blog2017 (8) TMI 1269X X X X Extracts X X X X X X X X Extracts X X X X ..... at visit of officers for routine checkup and audit does not debar the invocation of larger period if new ground comes to law, which was not revealed by the assessee to the department. However, the adjudicating authority has not substantiated as to what new ground had come to light pursuant to audit. Higher appellate forums have consistently held that to invoke extended period, the elements of suppression of facts have to be proved and that too with intent to evade payment of duty. This is certainly not the case here. The entire proceedings are hit by limitation - appeal allowed on the ground of limitation. - E/335/2007 - Final Order No. 41367 /2017 - Dated:- 24-7-2017 - Ms. Sulekha Beevi, Member (Judicial) And Hon ble Shri Madhu Mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of Section 4 of the Central Excise Act, 1944 read with Rule 6 of Central Excise Valuation Rules, 2000. These elements otherwise would have been borne by the assessee and the value to such extent would have been increased by the assessee and claimed from the buyers for whom clearances were effected on deemed export basis. Accordingly proceedings were initiated for recovery of alleged differential duty of ₹ 2,05,38,343/- for the period April, 2001 to December, 2005, vide Show Cause Notice dated 04.08.2006, along with interest thereon. The SCN also proposed imposition of penalties under various provisions of law. 1.2 After due process of adjudication, the Commissioner vide impugned order dated 12.02.07 confirmed and demanded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ylene Chloride against ARO obtained from their deemed export customers and no additional consideration was obtained from the deemed exporters other than the amount mentioned in the invoice. 3. Inspite of giving all the details and records required by the department and also giving all clarifications, the department did not issue the SCN, until 04.08.2006, i.e, well beyond the period of limitation. 4. Appellant had explained to the department that they supplied the materials to deemed export customers only at international prevailing price on receipt of a valid ARO and Back to Back Letter of Credit (LC) opened by the customes bank by invalidating their Advance Licence in order to prevent the deemed export customer from importing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide letter dated 10.09.03, with regard to the internal audit to be conducted and had apparently requested for relevant documents and records. In response, appellants vide letters dated 16.09.03 and 20.09.03 have submitted relevant documents in respect of deemed export for the years 2001-02 and 2002-03 and had even requested the department to return the documents on completion of the audit. 5.2 Ld. Advocate has produced the copies of both the letters dated 30.09.03 and 20.10.03. In the letter dated 30.09.03 appellant had also informed the department, that while supplying the materials, they take precautions, namely, they receive a valid advance release order or back to back LC opened by the customer s bank by invalidating their advance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 2003 itself. All information called for had then been given by the appellant to the Department. It is not the case that such information provided was found to be concocted or falsified or misleading. 5.6 Higher appellate forums have consistently held that to invoke extended period, the elements of suppression of facts have to be proved and that too with intent to evade payment of duty. This is certainly not the case here. Even if the department had strong belief that the practice followed by the appellant resulted in differential duty liability, they could have very well acted upon such a belief with alacrity and issue a SCN within the stipulated period of limitation. Instead, there was considerable delay of almost three years before t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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