TMI Blog2023 (8) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion does not mean mere omission, but a positive act of suppressing facts with a willful intent. In this case, the Department seeks to attribute this intent to the appellant because the Department itself chose not to scrutinize the returns based on Departmental instructions. Had the Department scrutinized the returns the alleged short payment would have come to light. The Department is seeking to use its own inaction as the basis to impute the motive of suppression of facts with intent to evade on the appellant. This cannot be permitted. The Department s inaction cannot be the basis for invoking extended period of limitation, let alone basing such inaction to impute motive to the appellant. It is also found that the appellant was su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by the Cost Accountant. The cost indicated in CAS-4 was based on the previous year s cost of production. At the end of the financial year, the cost of production during that financial year was calculated and it was found that the appellant had paid more central excise duty that what was due during some months and less than what was due during others. For the period of dispute, the appellant paid duty, overall, in excess by Rs. 4,90,298/-. 4. The appellant s records were audited and it was pointed out that the appellant had to pay the duty short paid during same months amounting to Rs. 10,21,295/- without reckoning the duty paid in excess during other months. Since the goods were being transferred to its own sister unit, the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pears recoverable from the assessee along with interest under the provisions of Sub-Section (4) of Section 11A Section 11AA respectively of the Central Excise Act, 1944. The assessee also appears liable for penal action under Section 11AC of the Act ibid for contravening the provisions of Rule 8 Rule 9 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 . 6. The appellant contested the demand, which was, however, confirmed by the Assistant Commissioner and an equal amount of penalty was also imposed. This order was upheld by the Commissioner (Appeals) in the impugned order. 7. On behalf of the appellant, the following submissions were made :- (i) If duty is paid in excess during some month ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing case laws :- Nirlon Ltd. versus CCE, Mumbai 2015 (320) E.L.T. 22 (S.C.) Accurate Chemicals Industries versus CCE, Noida 2014 (300) E.L.T. 451 (Tri. Del.) Affirmed by Hon ble Allahabad High Court in CCE, Noida versus Accurate Chemical Industries 2014 (310) E.L.T. 441 (All.) Polymer Papers Ltd. versus CCE, Meerut 2019 (369) E.L.T. 1369 (Tri. All.) RT Packaging Ltd. versus CCE, Delhi IV 2017 (357) E.L.T. 597 (Tri. Chennai) Daman Ganga Board Mills Pvt. Ltd. versus CCE, Daman, Vapi 2012 (276) E.L.T. 532 (Tri. Ahmd.) Ispat Industries Ltd. versus CCE, Raigad 2007 (213) E.L.T. 439 (Tri. Mum.) India Cements Ltd. versus CCE, Tirupati 2023 (2) T.M.I. 1091 CESTAT Hyderabad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rutiny of the assessment, on the basis of risk parameters, in some cases only. In this case, the scrutiny was not done for this reason; (vi) Had the audit not been conducted the short payment of duty would not have come to light. 9. We have considered the submissions on both sides and perused the records. 10. It is undisputed that the entire demand was beyond the normal period of limitation. The case of the revenue for invoking the extended period of limitation is that the Revenue had not scrutinized the returns filed by the appellant in view of the departmental instructions. Therefore, short payment of duty came to light only when the audit was conducted. Had the audit not been conducted the short payment would not have come t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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