2014 (1) TMI 7

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..... as admitted for consideration of the following substantial question of law formulated by this court. "Whether the Tribunal below committed substantial error of law in allowing the Appeal filed by the assessee on the question of limitation on the ground of divergence of views at the relevant point of time although according to the law of precedent, even there was divergence of views, it is the duty of the assessee to follow the one which is binding as a precedent." 2. We heard learned advocate Ms. Nayana Gadhavi for the appellant-department and learned advocate Mr. Paritosh Gupta holding brief for learned advocate Mr. Paresh M. Dave, for the respondent. 2.1 The assessee was engaged in manufacturing of fabricated iron and steel s .....

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..... department had invoked the extended period as per the first proviso to Section 11A of the Act on the ground that there was suppression and misstatement by the assessee. The Tribunal did not approve the action on the part of the department in invoking the extended period. 3. With the following observations, the Tribunal dismissed the appeal of the department. "......the law on the issue is clear, i.e. to the effect that when there are divergent views, many of which are in favour of the assessee holding the field, no suppression or mis-statement can be attributed to the assessee, to entertain the same belief. As admittedly, in the present case, judgment prior to Larger Bench in the case of Mahindra & Mahindra Ltd., were lying that the .....

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..... When the activity undertaken by it was not treated as manufacture, it would not have been expected to pay the excise duty. In order to show suppression or misstatement on the part of the assessee, a positive act has to be established. 4. In view of the above, no error was committed by the Tribunal in dismissing the appeal. It was not possible to countenance the contention of the learned counsel for the appellant that there was a suppression of facts and payment of duty was intentionally evaded by the assessee. 5. For the foregoing reasons, the question formulated is accordingly answered in negative in favour of the assessee. The appeal is dismissed being devoid of any merit as discussed above.
Case laws, Decisions, Judgemen .....

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