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TMI Blog2014 (9) TMI 383X X X X Extracts X X X X X X X X Extracts X X X X ..... did not arise in the present case, the Tribunal’s direction for deleting the penalty and not permitting the extended period of limitation, was based on materials on record and would not give rise to any question of law. - Decided against the revenue. - Tax Appeal Nos. 1044-1048 of 2013 - - - Dated:- 9-1-2014 - Akil Kureshi and Sonia Gokani, JJ. Shri Y.N. Ravani, Advocate, for the Appellant. Shri Sujit Ghosh, Counsel, appearing with Maulik Nanavati, Ms. Kanupriya Bhargava and Ms. Nikita Mehta, for the Respondent. ORDER Tax Appeals are admitted for consideration for the following substantial questions of law : (i) Whether Customs, Excise and Service Tax Appellate Tribunal committed an error in holding that M/s. G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red appeals which we have admitted. To the limited extent the Tribunal ruled in favour of the respondent-M/s. GSPL, appeals have been preferred by the appellant - Department and we have admitted such appeals also. However, presently we are considering the question whether the Tribunal committed an error in not permitting the extended period of limitation and recovering penalty, and whether such view of the Tribunal has given rise to the substantial question of law. 5. We have heard the learned counsel appearing for the parties on this issue. From the order of the Commissioner, we notice that for permitting the extended period of limitation and imposing penalty, he made the following observations : 82.3 Findings : As discussed in fore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Contractor by passing the CENVAT credit of duty paid on goods and materials used in the project is not violating the conditions of these notifications that credit should not be availed by EPC Contractor. 83.2 Therefore, I find that GSPL cannot plead innocence that they were not aware of law. They were aware as advised by PWC that the matter is not free from doubt and departmental authorities may take different interpretation. They have intentionally-taken credit on pipes without informing the department. I find that though they had sought advice from C.B.E. C., they never informed department that they had taken credit on pipes. Therefore, I find that in this case there is (i) suppression of facts, as they never informed department tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee had obtained a legal opinion from experts. Even thereafter the assessee had approached the C.B.E. C. for clarification. The C.B.E. C. did not respond to such communication. The Tribunal, therefore, held that when two views were possible and when the legal opinion was also available, it can be held that the assessee held a bona fide belief that the credit was available. The Tribunal, therefore, held that there was no willful misstatement on the part of the assessee. There was no suppression of facts. The Tribunal observed that the assessee is a public sector unit and the tax or duty evaded would not benefit any individual. Considering such circumstances, the Tribunal did not grant extended period to the Department and also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1994, can be imposed if the tax has not been levied or paid or has been short-paid or short-levied or erroneously refunded for the reason of fraud, collusion, willful misstatement, suppression of facts or contravention of provision with an intent to evade payment of tax. While Section 76 does not use such expressions, nevertheless it is to be seen in light of Section 80, which provides that no penalty shall be imposable on the assessee for any failure referred to in the said provisions, if the assessee proves that there was reasonable cause for such failure. 10. Observations and conclusions of the Tribunal, therefore, shall have to be seen in light of such statutory provisions. 11. To begin with, the Commissioner in the order-in-o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of tax. When we find that the Tribunal gave sufficient reasons to come to the conclusion that such facts did not arise in the present case, the Tribunal s direction for deleting the penalty and not permitting the extended period of limitation, was based on materials on record and would not give rise to any question of law. 13. Our attention was drawn by the learned counsel for the Department to certain decisions of the Supreme Court to canvass that these questions are also required to be admitted. However, such judgments touch on the aspect of imposing penalty below the minimum prescribed by the statute. This was the issue in the case of Commissioner of C.EX., Hyderabad-III v. Prudential Spinners Ltd., reported in 2011 (267) E.L.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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