2010 (9) TMI 931 - AT - Central Excise

Extended period of limitation - suppression of facts - intent to evade - penalty u/s 11AC of the Central Excise Act 1944 - Held that - The present show cause notice is issued on the basis of the Supreme Court s decision in the case of COMMISSIONER OF C. EX. BHUBANESHWAR-II VERSUS IFGL REFRACTORIES LTD. 2005 (8) TMI 112 - SUPREME COURT OF INDIA which is in favour of the Revenue - In these circumstances the allegation of suppression with intend to evade duty is not sustainable. Invocation of extended period of limitation is not sustainable - imposition of penalty under Section 11AC is not sustainable and set aside - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Demand confirmation invoking extended period on the ground of suppression of facts and penalty under Section 11AC of the Central Excise Act, 1944.
2. Contesting demand only on the issue of time bar.
3. Allegation of suppression of facts intending to evade duty.
4. Settlement of the issue of additional consideration by the Supreme Court in favor of the Revenue.

Analysis:

1. The appellant appealed against the impugned order confirming the demand from December 2000 to September 2005, invoking the extended period due to suppression of facts and imposing a penalty under Section 11AC of the Central Excise Act, 1944. The appellant, relying on a Supreme Court decision, did not contest the appeal on merits but focused on contesting the demand solely on the grounds of time bar.

2. The contention of the appellant revolved around the sale of goods to buyers with advance licenses, where the surrender of these licenses was considered as additional consideration for the sale of goods. The appellant argued that a prior Tribunal decision favored the assessee, and the show cause notice was based on a Supreme Court decision. The appellant maintained that the allegation of suppression of facts to evade duty was unsustainable, given the earlier Tribunal decision in favor of the manufacturer.

3. On the other hand, the Revenue contended that the appellant had not disclosed the additional consideration to the revenue, alleging suppression of facts with the intent to evade duty. However, the Tribunal found that the issue of additional consideration had been settled in favor of the Revenue by a Supreme Court decision, rendering the allegation of suppression unsustainable.

4. The Tribunal concluded that since the show cause notice was issued based on the Supreme Court's decision in favor of the Revenue, the invocation of the extended period of limitation was unsustainable. The demand beyond the normal limitation period was set aside, with the appellants being liable to pay duty and interest for the normal period. The imposition of penalty under Section 11AC was deemed unsustainable due to the lack of suppression of facts to evade duty, leading to the penalty being set aside. Ultimately, the appeal was allowed based on the above findings.