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TMI Blog2017 (10) TMI 1045X X X X Extracts X X X X X X X X Extracts X X X X ..... f SSI exemption under notification No. 8/2003 dated 01.03.2003. On 10.06.2006, the Preventive Branch of Central Excise scrutinized the statutory records and conducted the physical stock verification. It was observed that during the period 2005-2006, the appellant has removed their goods without payment of duty despite crossing the SSI exemption limit of Rupees One Crore and appellants have not got themselves registered with the department and nor filed the returns. However scrutiny of record revealed that during the period 2005-06, the finished goods of Rs. 3,00,04,498/- were cleared which is exceeding the SSI exemption limit. Therefore, the show cause notice was issued to the appellant on 19.11.2008 alleging that the Appellants No.1 though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emption limit and deliberately did not get themselves registered with the department. Therefore, extended period is rightly invoked. It is further submission that the period of 5 years is to be accounted backwards from the date of issue of show cause notice. Therefore, extended period of limitation is righty invoked. He also submitted that the conditions specified under notification are to be complied strictly. In support of his contention, he relied on the decisions of 1. Eagle Flast Indus. Ltd. vs. CCE, Pune [2004 (171) ELT 296 (SC)] ; 2. Kripa Fabs P Ltd. [2015-TIOL-1506-HC-MAD-CX] 3. Tejas Networks India Ltd. vs CCE [2014 (302) ELT 80 (Tri-Chennai)] affirmed by Hon'ble Apex Court as reported in [2015 (316) ELT A 157 (SC)]. 4. CCE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me set of facts/background and based on records maintained by the appellant, demand invoking suppression of fact was issued in 2009. While we are aware that the relevant date for issue of demand is with reference to periodical returns to be filed, the Department has to allege and establish with supporting evidence, the existence of factors indicating wilful mis-statement/suppression of facts. It should be a positive act of the appellant. The particulars, which formed basis of demand were all maintained and recorded in books of the appellant. 7. The show cause notice in this case has been issued by the Department alleging 'wilfull and intentional suppression' of facts by the appellant. It is trite in law that the suppression (intentional an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court held that the Appellant's transaction was on the basis of an agreement which was within the knowledge of the Department from 1995 and accordingly, the extended period of limitation under Section 11A of the Central Excise Act, 1944 could not be invoked vide show cause notice issued in 2000. In case of Kushal Fertilisers (supra), the Department carried out periodic inspections of the factories and was also intimated in 1991 by the Assessee of the details of its business. In this background, the Department issued a show cause notice to the assessee in 1994 invoking extended period of limitation. The Hon'ble Apex Court held that since the requisite information had always been provided to the Department when requested, no case of suppr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses were indulged in suppression, mis-statement, fraud, collusion etc., with intent to evade payment of duty and only on the basis of proceedings initiated by the Department, the desired information/particulars were furnished. In such circumstances, it has been held by the judicial forums that once it is established that pre-conditions of the proviso to Section 73(1) ibid/Section 11A ibid (i.e. fraud, suppression, collusion, wilful misstatement and contravention of any provisions with an intent to evade payment of tax), stand satisfied, then it becomes necessary to determine the date from which the extended period should be computed; and in such eventuality, the extended period of limitation should be computed from the date when the evasion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould succeed on the ground of limitation." 8. Considering the facts and circumsances of the facts in hand, I hold that extended period of limitation is not invokable as it was in the knowledge of the Revenue on 10.6.06 that the appellant has crossed the SSI exemption limit but no action was taken within time against the appellant and no further inquiry was conducted after 10.6.2006 to issue the show cause notice. In that circumstances, I hold that extended period of limitation is not invokable and the impugned demands against the appellants are not sustainable. Accordingly, the penalties on the appellants are also not imposable. 9. With this analysis, I set aside the impugned order and allow the appeals with consequential relief, if any. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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