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TMI Blog2015 (1) TMI 760X X X X Extracts X X X X X X X X Extracts X X X X ..... ed after 22 months - Held that:- proviso to Section 11A is not applicable because the show cause notice does not indicate that there was deliberate act of suppression of fact, fraud, mis-statement, etc. committed by the assessee. Mere act of omission by the assessee without there being any intention to evade payment of tax cannot be a ground to invoke the proviso to Section 11A of the Act, especia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e condoned. We, accordingly, condone the delay. Having heard the learned counsel for the appellant on merit, we find that a show cause notice was issued under Section 11A of the Central Excise Act, 1944 alleging that the assessee for the period 2006-07, 2007-08 and 2008-09 had wrongly taken/utilized Cenvat Credit amounting to ₹ 13,35,804/-. We find that an audit was conducted in the month o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act, fraud, mis-statement, etc. committed by the assessee. Mere act of omission by the assessee without there being any intention to evade payment of tax cannot be a ground to invoke the proviso to Section 11A of the Act, especially when the evasion came to the notice of the department when the audit was conducted in the month of March, 2010. In the light of the aforesaid, mere suppression of fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to the benefit of the Notification, (3) it was for the Department to immediately take up the contention that the benefit of the Notification was lost." Similarly in Commissioner of C.Ex.Mumbai-IV Vs. Damnet Chemicals Pvt. Ltd., 2007 (216) E.L.T. 3 (S.C.) the Supreme Court held: "In the circumstances, we find it difficult to hold that there has been conscious or deliberate wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e might have done not that he must have done would not render it suppression. It is settled law that mere failure to declare does not amount to willful suppression. There must be some positive act from the side of the assessee to find willful suppression." (emphasis supplied) The reliance on the decision placed by the learned counsel for the appellant in the matter of Commissioner of C. Ex., ..... X X X X Extracts X X X X X X X X Extracts X X X X
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