9911796707
TMI Blog2024 (9) TMI 1409X X X X Extracts X X X X X X X X Extracts X X X X ..... ty paid on the supplementary invoices has also demanded interest of Rs.8,55,102/- under Section 11B and Section 11AA of Central Excise, 1944 besides imposing penalty of Rs. 51,70,284 on the appellant under Section 11AC of the Act ibid read with Rule 25 of the Central Excise Rules, 2002. 2. The facts of the case are that the appellant entered into contracts with various parties for manufacture, testing, inspection and supply of transmission line towers. Such contracts contained a price variation clause depending on the cost of the input, labour and other costs that are not determinable at the time of initial clearance of goods under cover of Central Excise Invoices. Central Excise duty was thus paid on the basis of the assessable value as s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plies of their final product yet they otherwise neither disclosed the facts to the Department nor opted for provisional assessment of such goods. The notice thus goes onto allege that they had willfully violated the provisions of the Central Excise Rules, with intent to evade payment of duty. 5. Learned AR for the Revenue however supports the impugned order & reiterates the findings. 6. We have heard the two sides and perused the case records. 7. At the outset, we would like to unhesitatingly state that we are not convinced with the Department's contention that the appellant had resorted to suppression, mis-statement and willfully defaulted payment of appropriate leviable duty in the matter by choosing not to opt for provisional assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingredient actually exists in the matter and merely holding non-availment of provisional assessment procedure as a valid ground to invoke longer limitation to our understating belies reasonability and logic. For a show cause notice invoking normal period of limitation, it is required to be served on the noticee within one year of the relevant date and the period of one year would be required to be counted from the date of the return for the month concerned with short payment of duty. In the present case the notice is issued on 19.09.2013, which is well beyond normal period of limitation. Also none of the ingredients as contained in proviso to Section 11 A(1) being validly made out in the present case, the larger period of limitation, canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Delhi High Court wherein the Hon'ble High Court has held as under : "14. A reading of the aforesaid paragraph would show that in the said case notice of payment for interest was issued after four years and it was held that it was beyond a reasonable period and the department could recover the amount from the Assessing Officer, who had not taken steps for four years and not from the respondent-assessee therein. The finding of the Supreme Court on interpreting the applicable Act was that no limitation period was prescribed, therefore, proceedings for recovery could be initiated within a reasonable time. The ratio in the said case is distinguishable for the reason that payment of interest is to be made under Section 11A and, therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention that the initial payment of duty was in effect short paid duty warranting issuance of supplementary invoice and payment of duty leviable, along with interest as applicable under sec. 11AB/11AA. The fact to be noted here however is, that any show cause notice for the said purpose, if issued, was required to be issued within normal period of limitation particularly when we find the impugned show cause notice to be bereft of sustainable grounds to invoke longer period of limitation. Had the department taken care to promptly issue the notice within normal limitation, once apprised of the fact of short paid duty, the stance of the revenue would have been legally sustainable. However invoking longer period of limitation without existence o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
