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2008 (2) TMI 437 - HC - Central ExciseDuty demand under the proviso to Section 11A(1) of the Central Excise and Salt Act, 1944 - invoking extended period of limitation of five years - show cause notice has been issued to the party for the normal period - Held that - It is settled law, as has been held by the Supreme Court in Pahwa Chemicals Private Limited v. Commissioner of Central Excise, Delhi, (2005 (9) TMI 92 - SUPREME COURT OF INDIA), that mere failure to declare does not amount to wilful mis-declaration or wilful suppression. There must be some positive act on the part of the party to establish either wilful mis-declaration or wilful suppression. When all facts are before the Department and a party in the belief that affixing of a label makes no difference does not make a declaration, then there would be no wilful mis-declaration or wilful suppression. In the present case, a finding has been recorded by the CESTAT that it cannot be said that there was any wilful suppression or misstatement of facts with intention to evade payment of duty. Hence, we are of the opinion that no substantial question of law is arising from the order of the CESTAT.
Issues Involved:
1. Invocation of the extended period of limitation under proviso to Section 11A(1) of the Central Excise Act, 1944. 2. Allegation of wilful suppression or mis-statement of facts by the assessee to evade payment of duty. Detailed Analysis: 1. Invocation of the extended period of limitation under proviso to Section 11A(1) of the Central Excise Act, 1944: The primary issue in this appeal was whether the revenue could invoke the extended period of limitation under the proviso to Section 11A(1) of the Central Excise Act, 1944, to demand duty from the assessee. The relevant facts revealed that the assessee, engaged in manufacturing tractor parts, had transferred some parts to its sister division for captive use, but some parts were sold in the open market. A show cause notice was issued on 29-4-1993, demanding duty for the period from 1-10-1992 to 11-3-1993, which was confirmed by the adjudicating authority and upheld by the Tribunal. Subsequently, another show cause notice dated 1-6-1994 was issued, demanding duty for the period from 1-5-1989 to 30-9-1992, invoking the extended period of limitation under Section 11A of the Act. The CESTAT held that the extended period of limitation could not be invoked as there was no allegation of suppression or mis-statement of facts with intent to evade payment of duty in the earlier show cause notice. The Tribunal relied on the Supreme Court's decision in ECE Industries Ltd. v. CCE, New Delhi, which established that the extended period of limitation is not invocable in subsequent proceedings if earlier proceedings on the same subject matter were decided without such allegations. 2. Allegation of wilful suppression or mis-statement of facts by the assessee to evade payment of duty: The revenue contended that the assessee wilfully suppressed facts by not disclosing that some tractor parts transferred to its sister division were sold in the open market, thus evading duty. However, the CESTAT rejected this contention, stating that there was no intention to evade duty as all parts were cleared for captive consumption, and the transferee unit availed Modvat credit. The Tribunal concluded that there was no wilful suppression or mis-statement of facts, as the earlier show cause notice did not allege such suppression. The Tribunal's decision was supported by the Supreme Court's rulings in P & B Pharmaceuticals (P) Ltd. v. Collector of Central Excise and ECE Industries Ltd. v. CCE, New Delhi, which held that if earlier show cause notices on the same subject matter did not allege suppression, subsequent notices could not invoke the extended period of limitation on the same grounds. Conclusion: The High Court upheld the CESTAT's decision, affirming that the extended period of limitation under proviso to Section 11A of the Act was not applicable in this case. The Court emphasized that mere failure to declare does not amount to wilful suppression or mis-statement, and there must be a positive act to establish such intent. Since the CESTAT found no wilful suppression or mis-statement of facts, no substantial question of law arose from its order, leading to the dismissal of the appeal.
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