TMI Blog2018 (11) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... the bonafide belief. The entire dealings are on records and the payments they have made and received are through banking channel only. Further, the clearance had taken place under cover of Central Excise invoices which were duly entered in the Central Excise records and therefore intention to evade payment of duty is not establish. As the demand is based on the basis of information appearing in the balance sheet, suppression of such information with an intention to evade duty cannot be alleged and therefore, the demand raised by the Department is hit by limitation and as a result of which the extended period cannot be invoked in the facts of the present case - invocation of extended period not justified. The impugned order is set aside on the ground of limitation only without going into further merits of the matter - appeal allowed. - Excise Appeal No. E/3544/2010-Ex [DB] - FINAL ORDER NO. 53228/2018 - Dated:- 1-11-2018 - MR. C.L. MAHAR MEMBER (TECHNICAL) And MR. AJAY SHARMA, MEMBER (JUDICIAL) Present for the Appellant: Mr. O.P. Aggarwal, (Advocate) Present for the Respondent: Mr. R.K. Mishra, D.R ORDER PER: AJAY SHARMA The instant appeal has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed the fact regarding forfeited security amount from the Department. He also held that the demand ought to have been computed on come duty price as per the explanation to Section 4(1) of Central Excise Act, 1944. Being aggrieved, the Appellant has filed the instant appeal before this Tribunal. 4. We have heard ld. Advocate for the appellant and learned AR for the Department and perused the records. 5. The learned AR reiterated the findings recorded by the authorities below. He further submitted that the appellant has received advances during the period from 25/11/2003 to 15/05/2004 and made sales thereafter. But when the customers did not come back for getting the manufactured goods from the assessee, the assessee forfeited their advance deposit. The amount of advances which has been forfeited by the assessee, is not related to particular clearances of goods, therefore, the date of last clearances made to customers has been taken for the purpose of demanding central excise duty. Therefore for determination of demand of Central Excise duty, year wise value of clearances is to be considered, which is as under: (a) Out of ₹ 5,07,282/- amount of ₹ 1,04,380/- is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the assessee, has supplied goods on 23/12/06 to M/s Raghunandan Enterprises and to M/s Pasand Enterprises on 18/01/07. Thereafter, the assessee had not supplied any goods to both the above customers. Therefore, the amount of advances received from M/s Raghunandan Enterprises and M/s Pasand Enterprises was forfeited as on 31/03/2006, is liable to levy of central excise duty during the year 2005-06. Therefore an amount of ₹ 1,62,230/- (507282104380-9626-231046) is liable to be included in the value of clearances for the year 2005-06 and the same amount i.e. ₹ 1,62,230/- is liable to levy of central excise duty @ 16% i.e. ₹ 25,957/- and Edu. Cess @ 2% of CENTRAL EXCISE duty i.e. ₹ 519/- 6. In order to appreciate the issue involved in this matters it is appropriate to go through the relevant Sections of the Central Excise Act, 1944, which are extracted as under:- xxx xxx xxx Section 11. Recovery of sums due to Government - In respect of duty and any other sums of any kind payable to the Central Government under any of the provisions of this Act or of the rules made thereunder including t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho is liable to pay duty as determined under sub-section (2), or has paid the duty under sub-section 2(B), of section 11A, shall, in addition to the duty, be liable to pay interest at such rate not below 3 ten per cent. and not exceeding thirty-six per cent. per annum, as is for the time being fixed by the Central Government, by notification in the Official Gazette, from the first date of the month succeeding the month in which the duty ought to have been paid under this Act, or from the date of such erroneous refund, as the case may be, but for the provisions contained in sub-section (2), or sub-section (2B), of section 11A till the date of payment of such duty: Provided that in such cases where the duty becomes payable consequent to issue of an order, instruction or direction by the Board under section 37B, and such amount of duty payable is voluntarily paid in full, without reserving any right to appeal against such payment at any subsequent stage, within forty-five days from the date of issue of such order, instruction or direction as the case may be, no interest shall be payable and in other cases the interest shall be payable on the whole of the amount, including the amount a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso paid within the period so specified; (c) 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 or collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, the person who is liable to pay duty as determined under sub-section (10) of section 11A shall also be liable to pay a penalty equal to the duty so determined : Provided that in respect of the cases where the details relating to such transactions are recorded in the specified record for the period beginning with the 8th April, 2011 up to the date on which the Finance Bill, 2015 receives the assent of the President (both days inclusive), the penalty shall be fifty per cent. of the duty so determined; (d) where any duty demanded in a show cause notice and the interest payable thereon under section 11AA, issued in respect of transactions referred to in clause (c), is paid within thirty days of the communication of show cause notice, the amount of penalty liable to be paid by such person shall be fifteen per ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bill, 2015 receives the assent of the President, shall be eligible to closure of proceedings on payment of duty and interest under the proviso to clause (a) of sub-section (1) or on payment of duty, interest and penalty under clause (d) of sub-section (1), subject to the condition that the payment of duty, interest and penalty, as the case may be, is made within thirty days from the date on which the Finance Bill, 2015 receives the assent of the President; (iii)any case of non-levy, short-levy, non-payment, short-payment or erroneous refund where an order determining duty under sub-section (10) of section 11A is passed after the date on which the Finance Bill, 2015 receives the assent of the President shall be eligible to payment of reduced penalty under clause (b) or clause (e) of sub-section (1), subject to the condition that the payment of duty, interest and penalty is made within thirty days of the communication of the order. Explanation 2. For the purposes of this section, the expression ―specified records‖ means records maintained by the person chargeable with the duty in accordance with any law for the time being in force and includes computerised rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which it was held that balance sheet is a public document, therefore, for demand based on the basis of information appearing in the balance sheet, suppression of such information with an intent to evade duty cannot be alleged and that in such cases, demand is hit by limitation. 9. The Hon ble Supreme Court also in the matter of Cosmic Dye Chemical vs. Collector of Central Excise, Bombay reported in 1995 (75) E.L.T. 721 (S.C.), held that intent to evade duty must be proved for invoking the proviso to Section 11 A(1) of the Central Excise and Salt Act, 1944 for extended period of limitation Act. The relevant extract of the said decision is as under:- xxx xxx xxx 6. Now so far as fraud and collusion are concerned, it is evident that the requisite intent, i.e., intent to evade duty is built into these very words. So far as mis-statement or suppression of facts are concerned, they are clearly qualified by the word wilful preceding the words mis-statement or suppression of facts which means with intent to evade duty. The next set of words contravention of any of the provisions of this Act or Rules are a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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