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2018 (2) TMI 8

Validity of SCN - Time limitation - Held that: - the SCN was issued by the department on 19.8.2011. It is an admitted fact on record that the show cause notice has not been issued in this case within the normal period of one year provided under Section 11A of the CEA, 1944. Since, between the period of conducting such audit in August, 2008 and issuance of the show cause notice in August, 2011, the department has not gathered any additional information for initiation of the show cause proceedings, it cannot be said that the SCN issued in August 2011, is sustainable on the ground of limitation - there are no merits in the impugned order so far as it adjudicated the matter, beyond the normal period of limitation - appeal allowed - decided in f .....

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ated by the department are barred by limitation of time inasmuch as the facts of availability of excess stock in the factory of the appellant was known to the Audit Wing of the department on 20.8.2008 and since the show cause notice was issued on 19.8.2011, the same is clearly barred by limitation of time. To support such stand that the proceedings are not maintainable on the ground of limitation, the ld. Advocate has relied on the judgement of Hon ble Allahabad High Court in the case of CCE & ST Vs. Triveni Engineering & Industries Ltd. - 2015 (317) ELT 408 (All.). 4. On the other hand, the ld. DR appearing for Revenue reiterates the findings recorded in the impugned order and further submits that since the facts of excess availabi .....

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e relevant paragraphs in the said judgement are extracted herein below. 5. We are of the opinion that the proviso to Section 11A is not applicable because the show cause notice does not indicate that there was deliberate act of suppression of fact, fraud, mis-statement, etc. committed by the assessee. Mere act of omission by the assessee without there being any intention to evade payment of tax cannot be a ground to invoke the proviso to Section 11A of the Act, especially when the evasion came to the notice of the department when the audit was conducted in the month of March, 2010. 6. 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 canno .....

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ments except to refer the judgment of this Court in Anand Nishikawa Co. Ltd. v. CCE, 2005 (188) E.L.T. 149 (S.C.) wherein this Court held : We find that suppression of facts can have only one meaning that the correct information was not disclosed deliberately to evade payment of duty, when facts were known to both the parties, the omission by one to do what he might have done not that he must have done would not render it suppression. It is settled law that mere failure to declare does not amount to wilful suppression. There must be some 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. .....

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