TMI Blog2019 (3) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... TION NOS: C/ROM/86219 & 86247/2018 IN APPEAL NOS: C/111 & 112/2009 - M/85166-85167/2019 - Dated:- 27-2-2019 - Shri C J Mathew, Member (Technical) And Shri Ajay Sharma, Member (Judicial) Shri Prakash Shah with Shri Prasad Paranjape, Advocates for applicant Ms PV Sekhar, Additional Commissioner (AR) for respondent ORDER Per: C J Mathew These applications for rectification of mistake point out that the Tribunal, in order no. A/85987-85988/2018 dated 5th April 2018 disposing off appeal no. C/111 112/2009, has misconstrued the submission on the challenge to the penalties for which the decision of the Hon ble High Court of Bombay in Star Entertainment Pvt Ltd v. Commissioner of Customs (Adjudication) [2015 (329) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he latter implies making of an incorrect statement with the knowledge that the statement was not correct. 11. Factual position goes to show the Revenue relied on the circular dated 23-5-1997 and dated 19-12-1997. The circular dated 6-1-1998 is the one on which appellant places reliance. Undisputedly, CEGAT in Continental Foundation Joint Venture case (supra) was held to be not correct in a subsequent larger Bench judgment. It is, therefore, clear that there was scope for entertaining doubt about the view to be taken. The Tribunal apparently has not considered these aspects correctly. Contrary to the factual position, the CEGAT has held that no plea was taken about there being no intention to evade payment of duty as the same was to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice did not invoke the extended period and that demand is limited to the normal period of limitation. The irresistible conclusion is that order did err in recording a submission to the contrary which was compounded by a finding on the non-submission. This requires appropriate rectification. 4. According to Learned Counsel for the applicant, the decision of the Hon ble High Court of Bombay, in re Star Entertainment Pvt Ltd , had been cited to establish that their circumstances did not warrant imposition of penalty under section 112 of Customs Act, 1962 and that a finding on this submission had not been recorded by the Tribunal. We have upheld the liability to confiscation but set aside the redemption fine on the ground of non-a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s fraud or collusion and, therefore, has to be construed strictly. Mere omission to give correct information is not suppression of facts unless it was deliberate to stop the payment of duty. Suppression means failure to disclose full information with the intent to evade payment of duty. When the facts are known to both the parties, omission by one party to do what he might have done would not render it suppression. When the Revenue invokes the extended period of limitation under Section 11A the burden is cast upon it to prove suppression of fact. An incorrect statement cannot be equated with a willful misstatement. The latter implies making of an incorrect statement with the knowledge that the statement was not correct. 11. Factua ..... X X X X Extracts X X X X X X X X Extracts X X X X
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