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TMI Blog2023 (3) TMI 1067X X X X Extracts X X X X X X X X Extracts X X X X ..... iled appeal No. E/50328/2016 which was disposed of by this Tribunal by Final Order dated 29.7.2019 remanding the matter to the Commissioner. Paragraphs 12 to 15 of this order are as follows. 12. In view of the above, we hold that the matter needs a detailed verification and examination of claims made by the appellant at the field level, we remand back the appeal to the original adjudicating authority for necessary verification. 13. Finally coming to the issue of Show cause notice being barred by limitation, we find that similar issue has already been adjudicated by the Commissioner vide his Order-in-Original No. 13/Commr/CEX/ADJ/STN/2010 dated 29.07.2010 wherein similar issue was the subject matter of remand. Apart from the above, we ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he contested the demand as the Show Cause Notice was issued beyond the normal period of limitation. He also contested the imposition of penalty under section 11AC. It is undisputed that to invoke extended period of limitation and also to impose penalty under section 11AC, one of the following elements must be present: a) Fraud; b) Collusion; c) Wilful mis-statement; d) Suppression of facts, e) Violation of the provisions of the Act or Rules with an intent to evade payment of duty. 4. According to the learned counsel for the appellant, extended period of limitation could not have been invoked in this case for the following reasons. a) This was a case involving interpretation of law which was finally settled by the Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re cannot be suppression clause invocable for demand of duty as they have not suppressed the facts with intent to evade payment of excise duty. In support of their defence, they placed reliance some judicial pronouncements. Here, I find that the suppression of facts with intent to evade duty is clearly evident as all these material facts came to the knowledge of the Department only after scrutiny of records. Furthermore, the Noticee has not provided any evidence to show that they had provided any information about the categories of buyers to whom they had cleared the cement in ER-1 and they have also deliberately misinterpret the definition of „institutional/industrial consumer‟ of SoWM (PC) Rules as well as provision of notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny evidence to show that they had provided any information about the categories of buyers to whom they had cleared the cement in ER-1. c) The audit is always done on a selective basis and hence the fact that the audit was conducted would not come to the aid of the appellant and the demand is not time-barred. 9. It would be necessary to briefly review the relevant legal provisions regarding assessment. Central Excise Rules, 2002 provide not only for self-assessment of duty and filing of returns by the assessee in ER-1, but also scrutiny of the returns by the officers. Duty of excise is charged on excisable goods manufactured or produced in India but the duty becomes payable on removal (Rule 4). The assessee has to self- assess (Rule 6) th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Excise a monthly return in the form specified by notification by the Board, of production and removal of goods and other relevant particulars, within ten days after the close of the month to which the return relates Xxxxxxx (3) The proper officer may on the basis of information contained in the return filed by the assessee under subrule (1), and after such further enquiry as he may consider necessary, scrutinize the correctness of the duty assessed by the assessee on the goods removed, in the manner to e prescribed by the Board. (4) Every assessee shall make available to the proper officer all the documents and records for verification as and when required by such officer. xxxxxx 10. The officer scrutinising the returns can cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ises the returns as he is mandated to do and calls for any records as he is authorised to call for, any mistakes which may be pointed out by the audit would come to light and an SCN could have been issued under section 11A within the normal period of limitation. Therefore, even if no audit is conducted during the relevant period and some duty escapes assessment, extended period of limitation cannot be invoked for that reason. The check against incorrect self assessment is the scrutiny of the return by the officer and audit is only the second check. Therefore, while the fact that audit checks only some selected documents and not every document as held in the impugned order is correct, this cannot be a ground to invoke extended period of limi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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