TMI Blog2018 (2) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... r as it adjudicated the matter, beyond the normal period of limitation - appeal allowed - decided in favor of appellant. - Appeal No.E/56763/2013-SM - Final Order No.50378/2018 - Dated:- 25-1-2018 - Mr. S. K. Mohanty, Member ( Judicial ) Shri Prabhat Kumar, Advocate - for the appellant Shri K. Poddar, D.R. - for the respondent ORDER Per S. K. Mohanty This appeal is directed against the impugned order dated 11.1.2013 passed by the Commissioner (Appeals), Central Excise, New Delhi. 2. The brief facts of the case are that the appellant is engaged in the manufacture of copper wires falling under Chapter Heading 7408 of the Central Excise Tariff Act, 1985. Audit of records of the appellant was conducted for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appearing for Revenue reiterates the findings recorded in the impugned order and further submits that since the facts of excess availability of the goods in the factory were suppressed by the appellant and the same were detected by the Audit Wing on 20.8.2008, issuance of show cause notice within five years from the date of such knowledge should be considered as the relevant period for the issuance of the show cause notice. Thus, he submits that the initiation of show cause proceedings by the department is not barred by limitation of time. 5. Heard both sides and perused the records. 6. I find from the available records that based on the audit conducted by the Central Excise department in the factory of the appellant from 20.8.2008 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the light of the aforesaid, mere suppression of facts without there being a deliberate act of fraud, etc. with the intention to evade payment of duty cannot entitle the department to invoke the proviso to Section 11A of the Act. 7. In Pahwa Chemicals Private Limited v. Commissioner of C. Ex., Delhi, 2005 (189) E.L.T. 257 (S.C.) the Supreme Court held that : It is settled law that mere failure to declare does not amount to wilful mis-declaration or wilful suppression. There must be some positive act on the part of the party to establish either wilful mis-declaration or wilful suppression. When all facts are before the Department and a party in the belief that affixing of a label makes no difference does not make a decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e positive act from the side of the assessee to find wilful suppression. (emphasis supplied) 9. The reliance on the decision placed by the learned counsel for the appellant in the matter of Commissioner of C. Ex., Vishakhapatnam v. Mehta Co., 2011 (264) E.L.T. 481 (S.C.) is distinguishable and is not applicable to the present facts and circumstances of the case. 10. For the reasons stated aforesaid, we do not find any merit in the appeal and is dismissed at the admission stage itself. 7. In view of above, I do not find any merits in the impugned order so far as it adjudicated the matter, beyond the normal period of limitation. Accordingly, after setting aside the same, I allow the appeal in favour of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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