TMI Blog2018 (9) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... he said show cause notice came to be issued and there was no material placed in the said show cause notice to support the allegation of either willful mis-statement or clandestine removal or suppression of fact or fraud or collusion with an intention to evade payment of duty. Thus, in the absence of such material, the extended period of limitation is not invocable. Whether excise duty can be demanded on the ground of clandestine removal when the Department did not allege clandestine removal at the stage of show cause notice, Order-in-Original and Order-in-Appeal? - Held that:- There was no such material with the Original Authority, when the show cause notice dated 20.6.2007 was issued. The well considered order passed by the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.7.2010. 2. The above appeal has been admitted by order dated 09.11.2010 on the following substantial questions of law : 1. Whether excise duty can be demanded on the ground of clandestine removal when the Department did not allege clandestine removal at the stage of show cause notice, Order-in-Original and Order-in-Appeal ? 2. Whether larger period under Proviso to Section 11A(1) of the Central Excise Act, 1944, could be invoked alleging suppression of facts when stock discrepancy is explicitly disclosed in the annual report ? 3. Whether the Tribunal can make out a case for the Revenue based on a new ground, when show cause notice, Order-in-Original and Order-in-Appeal did not speak about the said ground ? 4. Wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that it was evident that there had been shortage of raw materials and components, intermediate and finished goods in the assessee's factory. Thus, it was alleged that the assessee had failed to inform the Department about the shortage with a clear intention to evade payment of excise duty and invoking the extended period of limitation under the Proviso to Section 11A(1) of the Central Excise Act, 1944 (for brevity, the Act), the said notice was issued calling upon the assessee to show cause as to why duty of ₹ 81,058/- should not be demanded, as to why the CENVAT credit availed on the raw materials and components found short should not be recovered, as to why appropriate interest should not be demanded and as to why penalty shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he substantial questions of law mentioned above. 7. We have heard Mr.Joseph Prabhakar, learned counsel for the appellant and Mr.A.P.Srinivas, learned Senior Standing Counsel appearing for the Revenue. 8. The first and foremost aspect to be considered in the instant case is as to whether the extended period of limitation could have been invoked by referring to the Proviso to Section 11A(1) of the Act. The extended period is invocable where any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded by reason of fraud, collusion or any willful mis-statement or suppression of facts for contravention of any of the provisions of the Act with an intention to evade payment of duty. If this is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y under Section 11AC of the Act could not have been imposed. Further, the First Appellate Authority was fully justified in coming to the conclusion that the allegation of clandestine removal was required to be established by the Revenue by producing satisfactory or positive evidence and it cannot be based on assumptions and presumptions. 11. As pointed out earlier, there was no such material with the Original Authority, when the show cause notice dated 20.6.2007 was issued. The well considered order passed by the Commissioner (Appeals) stood reversed by the Tribunal, which, in our considered view, by a cryptic order, without discussing the facts and circumstances of the case, had not properly appreciated as to what was the allegation aga ..... X X X X Extracts X X X X X X X X Extracts X X X X
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