TMI Blog2018 (4) TMI 1389X X X X Extracts X X X X X X X X Extracts X X X X ..... not be held to be violative of law - If the law does not require documents / invoices, non submission of the same by an assessee is in accordance with the law and cannot be held to be a suppression or mis-statement, with an intent to evade payment of duty, thus justifying the invocation of longer period of limitation. The appellant have admittedly filed ER 1 returns declaring the quantum of credit availed by them and the Revenue had not taken action for a period of more than 2 to 3 years and issued the show cause notice only subsequently in January,2016 - In the absence of any positive action on the part of the assessee to suppress the material facts from the Revenue, with a guilty mind, extended period cannot be held to be applicable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hopelessly barred by limitation. She has also drawn my attention to observations made by Commissioner (Appeals) where he admitted that the appellant filed the ER 1 return but rejected their plea on the sole ground that the details of the credit availed were not given in the ER 1 return and invoices were not submitted with the said returns. As regards the repair and maintenance services, she submits that there is no exclusion of the said service and even if they are availed outside the factory premises but within the industrial area, credit would be admissible. She also referred to various decision in support of her contentions. 4. Learned AR appearing for the Revenue reiterates the grounds of rejection adopted by Commissioner (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate authority has upheld the extended period on the short ground that the details of the services in respect of which the credit was availed has not been reflected in ER 1 return and no document/ invoices stand given by the assessee. However, as is seen from the above observations of the appellate authority himself, no documents are required to be submitted by the assessee after 1996. If there is no legal obligation on the part of the assessee to do a particular act, non observation of that procedure / act cannot be held to be violative of law. If the law does not require documents / invoices, non submission of the same by an assessee is in accordance with the law and cannot be held to be a suppression or mis-statement, with an intent to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mal period of limitation is time barred. 8. Apart from the above, the Hon ble Allahabad High Court in the case of Commissioner of Central Excise, NOIDA vs. Accurate Chemical Industries [2014 (310) ELT 441 (All)] has also observed that the short payment detected by audit team when the assessee has duly filed the ER 1 return on a monthly basis, cannot be considered to be a malafide and the Range Officer were required to carry out a detailed scrutiny of ER 1 returns and if the same would have been done, short payment would have been detected. In such a scenario, the Hon ble High Court observed that there was no malafide intent and extended period was not available. 9. Identical are the facts in the present case also. The appellant have ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
