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TMI Blog2013 (4) TMI 644X X X X Extracts X X X X X X X X Extracts X X X X ..... d clarificatory circular pursuant to aforesaid judgment on 21-11-2003, therefore, it would be unfair to infer that the appellant was aware the law laid down by the Supreme Court in the matter of Panchmukhi Engineering Works (supra) immediately after the pronouncement of judgment on 28-11-2002. There is no reason to impute mala fide intention on the party of the appellant to evade the excise duty by deliberately not included the “Dharmada charges” in the transaction value. Undisputedly, it is not a case of fraud or dishonest concealment of fact. - Demand set aside being beyoind the normal period of limitation - Decided in favor of assessee. - E/534/2006 - A/728/2012-EX(BR)(PB) - Dated:- 19-6-2012 - Ajit Bharihoke, Rakesh Kumar, JJ. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed on Shri P.K. Sinha, Dy. G.M. (Legal) of the appellant company under Rule 26 of the Central Excise Rules, 2002. The appellant feeling aggrieved by the order-in-original preferred appeal before the Commissioner (Appeals), the main plank of the said appeal was that the demand raised by the Department was barred by limitation and there was no justification for invoking the extended period of five years by the Department. Commissioner (Appeals) after hearing the appellant did not find merit in the appeal and dismissed the same. Shri P.K. Sinha is not in appeal before the Tribunal. 4. Learned Shri Prabhat Kumar, Advocate has submitted that the period of demand in this case is 2002-03 and 2003-February 2004. Undisputedly, show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n support of the impugned order. He contended that the appellant has deliberately not included Dharmada charges in the assessable value for the purpose of excise duty and this fact came to light only during audit conducted by the Department. That the appellant never disclosed this fact in his ER-1 return, therefore, it is a clear case of suppression and concealment of the material facts by the appellant as such the Department was justified in invoking the extended period of five years. 6. We have considered the rival contention and perused the record. The dispute which requires consideration in this appeal is whether or not the Department was justified in invoking extended period of five years for raising the duty demand. In order to fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding of the above provision, it is evident that normal period of limitation for raising duty demand is one year. It is, however, extendable to five years provided it is established that non-levy or short levy of duty demand is by reason of fraud, collusion or any wilful mis-statement or suppression of facts with the intention to evade the payment of excise duty. On perusal of the impugned order, it is seen that while dealing with the issue of limitation Commissioner (Appeals) have noted that even for the earlier period the appellant was served with a show cause notice raising duty demand in respect of short payment of excise duty on account of non inclusion of Dharmada collected from the buyers for in the transaction value for the purpose o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of CCE v. Panchmukhi Engg. Works (supra) but this cannot be taken as a reason conclude that the appellant has deliberately not included the Dharmada charges collected from the buyer in, the transaction value with dishonest intention to evade excise duty liability. Thus, in our view this is not a case of fraud, concealment or suppression of facts with dishonest intention to escape the excise duty liability. As such, there was no occasion for invoking the extended period of limitation for raising the demand. Admittedly, the demand notes have been issued beyond the period of one year from the period in question. As such, we are of the view that the demand is not sustainable being barred by limitation. 8. Shri R.K. Verma, ld. AR submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deliberately concealed and suppressed the fact of non-inclusion of Dharmada charges in the transaction value with effect from November, 2002. 10. In view of the discussion above, we are of the view that there is no reason to impute mala fide intention on the party of the appellant to evade the excise duty by deliberately not included the Dharmada charges in the transaction value. Undisputedly, it is not a case of fraud or dishonest concealment of fact. Thus, in our view the Department was not justified in invoking extended period of five years for raising the demand. Accordingly we hold that the demand raised by the Department is barred by limitation as such the impugned order cannot be sustained. The appeal is, therefore accepted and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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