2011 (4) TMI 895 - AT - Central Excise

Demand extending period of limitation - order set aside by Commissioner (Appeals) as SCN lacked information regarding ground for invoking extended period of limitation - Held that - It was absolutely necessary for the Commissioner (Appeals) to ascertain whether the arguments are born out from the records or not. Assessee can very well place before the concerned authority that there was no mis-declaration or wilful suppression in the matter and the Department can also counter the same - As the finding is contrary to the contents of the show cause notice issued to the assessee the same is not sustainable - impugned order is set aside and the Commissioner (Appeals) is directed to decide the appeal on merits - Appeal is allowed

Summary

Issues:
1. Justification of setting aside the order due to lack of information in the show cause notice regarding the ground for invoking extended period of limitation.

Analysis:
The case involved an appeal arising from an order passed by the Commissioner (Appeals) allowing the appeal filed by the respondent and setting aside the order passed by the adjudicating authority. The Assistant Commissioner had confirmed the demand of duty along with interest and penalty against the respondents. The main issue in question was whether the Commissioner (Appeals) was justified in setting aside the order due to the show cause notice lacking information on the ground for invoking the extended period of limitation.

The impugned order highlighted the non-disclosure of the ground for invoking the extended period of limitation in the show cause notice. The Commissioner (Appeals) referred to specific case laws to support the decision, emphasizing that once facts were known to the Department and a show cause notice was issued, subsequent notices invoking extended periods could not be issued. The Commissioner (Appeals) found the show cause notice in question was issued after the relevant period of demand, thus breaching the time limitation under Section 11A of the Central Excise Act, 1944. Therefore, the impugned order was deemed not maintainable in law, leading to its setting aside and the appeal being allowed.

The show cause notice did contain relevant averments for the extended period of limitation, stating that the assessee had not filed required declarations and had suppressed facts to evade central excise duty. The notice clearly indicated the intention to invoke the extended period due to the suppression of facts. However, the Commissioner (Appeals) failed to consider this crucial aspect while deciding the appeal, leading to the appeal being allowed based on certain case laws without proper scrutiny of the facts presented. The Commissioner (Appeals) was expected to evaluate whether the arguments were supported by the records, which was not done in this case.

Moreover, the decision in the case of Commissioner of C.Ex., Delhi IV vs. Escorts Limited highlighted that mere failure to declare did not necessarily imply wilful mis-declaration or suppression. Positive acts indicating wilful mis-declaration or suppression needed to be established. The Commissioner (Appeals) was directed to consider all facts during the hearing, even if not explicitly mentioned in the show cause notice. As the finding contradicted the contents of the show cause notice, the decision to set aside the order was deemed unsustainable.

In conclusion, the appeal was allowed, the impugned order was set aside, and the Commissioner (Appeals) was instructed to decide the appeal on its merits promptly. The judgment highlighted the importance of proper consideration of facts and grounds for invoking extended periods of limitation in show cause notices to ensure legal sustainability of decisions.