TMI Blog2018 (2) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be accepted as those clearances are not subject matter of the present case. To that extent, the Tribunal did not agree with the assessee. Extended period of limitation - Held that: - the Tribunal held that if the suppression came to light in January, 2001, subsequent to that it cannot be said that there was any further suppression or there was continued suppression. There was no fresh act by which a suppression can be inferred nor is such material brought on record. If that is how the matter is brought by the Revenue Officials, then subsequent to that period it could not be alleged by the Revenue that there was a suppression on the part of the assessee. The demand for the period February, 2001 to June, 2004 becomes time barred. The Hon'ble Supreme Court has been emphasising that the Revenue cannot resort to what it has repeatedly done in matters after matters. It cannot cover up its own fault or error by such erroneous application of law. Once the legal position was clear and throughout, we do not see any justification for the Revenue bringing this appeal. Appeal dismissed. - Central Excise Appeal No. 101 of 2016 - - - Dated:- 19-1-2018 - S.C. DHARMADHIKARI SMT. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dification or approval from a higher Court, it neither initiates the litigation, or if initiated, does not pursue it with the required degree of competence and proficiency. We find that in such high stake matters, the assessees are let off very lightly. There are incomplete instructions, inadequate pleadings, insufficient arguments and absolutely no preparation. Such matters, which are very serious and have far reaching consequences, are left to Junior Advocates and we never find any Senior Advocate or a Senior Law functionary coming to Mumbai and arguing such cases for the Revenue. If the Revenue really feels that tax collection must increase or improve, it is time it revisits its Panel of Advocates and appoint competent and experienced members of the legal profession to represent it. That engaging them means paying them high fees is no reason for substituting them with incompetent Advocates. Then, all the more the Revenue ends up in loosing cases. It is not as much about winning or loosing but what is disturbing is the failure or any attempt to match the opponent's skill, expertise and efficiency. The cases are given up very easily and none feels anything about such performan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d evasion was noticed during the audit conducted in January, 2001. This suppression was made by the assessee with a view to evade payment of actual duty. 5. This resulted in issuance of Nine Show Cause Notices. For us, the details of these Show Cause Notices have to be set out hereinbelow and we set out the same: 1) V(87) 15 119/Adj/Nsk 1/05 dated 19 -7- 2005; 2) V(87) 15 190/M M/Adj/Nsk 1/05 dated 22 -9- 05; 3) V(87) 15 14/M M/Adj/Nsk 1/06 dated 1-6- 20 06; 4) V(87) 8/M M/Adj/Nsk 1/07 dated 16 -1- 07; 5) V(87) 15 123/M M/Adj/Nsk 1/07 dated 7 -11- 07; 6) V(87) 15 82/Nsk 1/M M/Adj/08 dated 12- 6- 08; 7) V(87) 15 42/Nsk 1/M M/Adj/09 dated 20 -4- 09; 8) V(87) 15 127/Nsk 1/M M/Adj/09 dated 18 -11- 09; 9) V(87) 15 68/Nsk 1/M M/Adj/10 dated 16- 9- 10. 6. Pertinently, the Revenue adjudicated these Notices by a common Order -in- Original dated 9- 3- 2011. 7. Aggrieved and dissatisfied with the confirmation of the demand and the Order- in -Original, the assessee approached the Commissioner (Appeals). The Commissioner by a common order confirmed the Order- in -Original but reduced the total amount of duty demanded on account of certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e would submit that the language of Section 11A, as existing and prevailing at the time of issuance of the Show Cause Notices, was clear. Its plain and unambiguous language results in enabling the Revenue to recover the duty of excise not levied or paid or short levied or short paid or erroneously refunded by reason of fraud, collusion or any wilful mis statement or suppression of fact or contravention of any provision of the Act or of the Rules made thereunder with intent to evade payment of duty and within the normal period of one year which stands substituted by five years. She would submit that if the very act of suppression, as detected in the audit, was relied on to issue the subsequent Show Cause Notices, then, the extended period was not permissible to be invoked. She would submit that this is a finding of fact. One cannot make capital of some detection during audit and allege suppression but rely on such suppression once detected to recover the demands which are ex facie time barred. Once the suppression was detected, the law envisages prompt measures to recover and Section 11A does not ordinarily and normally permit invocation of the extended period. If the extended perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luation Rules, 2000 and analysing it, came to the conclusion that the language of it says that the price prevailing at the place of sale of goods shall be the transaction value in respect of the goods cleared from the factory to depot. Therefore, the Tribunal held that the submission, that in some of the cases the motor vehicles were sold at higher price than the price prevailing at the depot of sale and therefore the demand is not sustainable, cannot be accepted as those clearances are not subject matter of the present case. To that extent, the Tribunal did not agree with the assessee. 17. However, when it came to the question of invocation of the extended period, the Tribunal proceeded to analyse, in the backdrop of the language of Section 11A, the facts and held that the first Show Cause Notice dated 19 -7 -2005 alleging as above, clearly refers to the detection of the suppression by the audit team/officers. That is in January, 2001. The Tribunal held that if the suppression is detected as early as in January, 2001, the demand can be raised upto five years from such detection. Thus, the demand for the period prior to audit objection raised in January, 2001 can be raised upto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore it cannot be said that subsequent to that period there was suppression of fact on the part of appellant. Therefore in our considered view the demand for the period February 2001 to June 2004 becomes time barred, hence the same is dropped. As regards the submissions of the learned Counsel that penalty under Section 11AC cannot be imposed in respect of normal period of 1st SCN and in all subsequent show cause notices issued covering the period July, 2004 to March, 2013 as the same were issued within normal period of one year. The fact of the modus operandi of the appellant came to the notice of the Department in January 2001 from the audit of the appellants' record, thereafter there was no suppression of fact on the part of the appellant. In this factual matrix, we are of the considered view that proviso to section 11A is not invokable in respect of the demand raised during the period July 2004 to March 2013. Consequently, penalty imposed under section 11AC for the said period is not correct and legal. Therefore the penalty imposed under section 11AC commensurate to the demand of duty for the period July, 2004 to March, 2013 is hereby dropped. 5.1 In view of our abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s involved. It is clear that the letter was written under some circumstances and best known to the Revenue. Therefore, the penalty amounts equivalent to the extra demand were scaled down by the Tribunal. The demand was thus reduced to ₹ 25,00,000/ . We do not see how this Judgment has any application because what the issue involved is and rightly contended by the assessee's counsel that the period from the date of issuance of the Show Cause Notice has to be reckoned backwards. That is precisely what is held in para 9 of the Judgment of the Hon'ble Supreme Court in Mathania Fabrics. Far from supporting the Revenue, these observations would run counter to its arguments canvassed before us when the attempt was to bring in the subsequent period and without there being any suppression. 22. In the case of Neminath Fabrics (supra ), the paragraph 20 is being relied upon is completely out of context. There the factual position was that a Show Cause Notice dated 9- 5- 2009 came to be issued and it was adjudicated on 22 -2- 2006. The demand of duty was confirmed with interest under Section 11AB of the Central Excise Act, 1944 and penalty under Section 11AC was also impose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24. To our mind, the issue is squarely covered by a series of Judgments to be found in the compilation handed over by the assessee's Advocate. Consistently the Hon'ble Supreme Court has been holding that the extended period can be invoked when all preconditions for such invocation are satisfied. In the case of ECE Industries Limited Vs. Commissioner of Central Excise, New Delhi, reported in 2004 (164) E.L.T. 236 , the Hon'ble Supreme Court clearly held that the extended period of limitation cannot be invoked where the Department has earlier issued Show Cause Notice in respect of the same subject matter. It could not be said that there was wilful suppression or mis statement. Then, the extended period cannot be invoked. Similar is the position in the matters of Nizam Sugar Factory Vs. Collector of Central Excise, A.P., reported in 2006 (197) E.L.T. 465 and Caprihans India Ltd. Vs. Commissioner of Central Excise, Surat, reported in 2015 (324) E.L.T. 8. 25. In Caprihans India Ltd. (supra), the Hon'ble Supreme Court once again reiterated the principle that a Show Cause Notice issued way back on 18 -2- 1994 called upon the assessee to reclassify the good ..... X X X X Extracts X X X X X X X X Extracts X X X X
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