2016 (11) TMI 406 - AT - Central Excise

Suppression of facts - additional duty of excise leviable under Notification No.6/05 dated 01.03.2005 - SSI exemption under Notification No.8/2003 dated 1.6.2003 - unbranded tobacco - Held that - the appellant was filing E.R.-I returns in which it was clearly depicting clearances of the un-branded tobacco at nil rate of duty. If the intention had been to suppress the clearance of such goods at Nil rate of duty, it would not have mentioned the details of such clearances in the ER-I returns. Extended period of limitation - Held that - reliance placed on the decision of Uniworth Textiles Ltd. vs. CCE, Raipur 2013 (1) TMI 616 - SUPREME COURT where it was held that mere non-payment of duties is not equivalent to collusion or willful misstatement or suppression of facts, otherwise there would be no situation for which ordinary limitation period would apply. Inadvertent non-payment is to be met within the normal limitation period and the burden is on Revenue to prove allegation of willful mis-statement. The onus is not on the assessee to prove its bonafides - sufficient grounds required for sustaining the allegation of willful misstatement/suppression of fact do not exist in this case, and therefore, extended period is not invokable. The demand pertaining to the extended period beyond one year set aside and the mandatory equal penalty under Section 11AC also set aside - Appeal disposed off - decided partly in favor of appellant.

Summary

Issues:
1. Whether the demand of duty of ?1,61,129 representing additional duty of excise on unbranded tobacco for the period March 2005 to March 2007, along with interest and mandatory equal penalty, was rightly confirmed due to willful misstatement/suppression of facts by the appellant.
2. Whether the appellant's claim of genuine unawareness of the imposition of additional duty and timely filing of E.R. I returns depicting clearances of unbranded tobacco at nil rate of duty supports the contention of no willful misstatement or suppression of facts.
3. Whether the non-payment of the impugned duty by the appellant amounts to deliberate misstatement of facts or suppression of facts.
4. Whether the judicial pronouncements on willful misstatement/suppression of facts support the appellant's argument of no willful misstatement or suppression of facts.

Analysis:
1. The judgment pertains to the confirmation of a demand of duty of ?1,61,129 on unbranded tobacco for the period March 2005 to March 2007. The appellant claimed SSI exemption but did not pay the additional duty of excise leviable under Notification No.6/05 dated 01.03.2005. The Tribunal considered the appellant's argument that it was genuinely unaware of the duty imposition and had timely filed E.R. I returns showing clearances at nil duty rate. The Tribunal analyzed whether there was willful misstatement/suppression of facts by the appellant.

2. The appellant contended that its unawareness of the duty imposition and the timely filing of E.R. I returns supported the claim of no willful misstatement or suppression of facts. The appellant highlighted that upon becoming aware of the duty liability, it paid the duty for a subsequent period, which was also appropriated. The Tribunal considered the appellant's actions and the contentions put forth by both sides regarding the alleged misstatement/suppression of facts.

3. The Revenue argued that even if the appellant filed E.R. I returns, the non-payment of the impugned duty could amount to deliberate misstatement of facts. The Tribunal examined whether the appellant's failure to pay the duty constituted suppression or deliberate misstatement of facts, considering the Revenue's perspective on the matter.

4. The Tribunal reviewed various judicial pronouncements on willful misstatement/suppression of facts, including cases like Uniworth Textiles Ltd. vs. CCE and CCE vs. Chemiphar Drugs Liniments. The Tribunal emphasized that the burden is on the Revenue to prove willful misstatement, and mere non-payment of duties does not necessarily equate to collusion or suppression of facts. The Tribunal applied these legal principles to the case at hand and concluded that there were insufficient grounds to sustain the allegation of willful misstatement/suppression of facts, leading to the partial allowance of the appeal and setting aside of the demand pertaining to the extended period and the mandatory equal penalty under Section 11AC.