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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 ..... as taken within time against the appellant and no further inquiry was conducted after 10.6.2006 to issue the show cause notice - extended period of limitation is not invokable and the impugned demands against the appellants are not sustainable - penalties also set aside. In similar set of facts in the case of Amway India Enterprises Pvt. Ltd. vs CCE, New Delhi [2017 (3) TMI 616 - CESTAT NEW DELHI], Tribunal has held that since the modus operandi adopted by the appellant for selling its products were known to the Department and based on the information/documents furnished by the appellant in 2005, the show cause proceedings were initiated by the Department on 12.03.2009, seeking confirmation of service tax demand under 'Franchise Service' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 though were aware of their liability to pay the excise duty, they deliberately not paid the duty by suppressing the value of clearance with intent to evade payment of duty. Appellant No. 2 abated Appellant No. 1 in committing such activity. The matter was adjudicated and demand of duty was confirmed along with interest and penalties on the appellant have been imposed. The learned Counsel for the appellants submits the value of ₹ 3,00,04,498/- includes the value of goods of ₹ 65,02,008/- which were goods returned and same has been cleared after removing the defect. Therefore, the amount of ₹ 65,02,008/- has been taken twice. It is main contention of the learned counsel that investigation was conducted on 10.6.2006, wherea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2014 (302) ELT 80 (Tri-Chennai)] affirmed by Hon ble Apex Court as reported in [2015 (316) ELT A 157 (SC)]. 4. CCE vs. Mehta Co. [2011( 264) ELT 481 (SC)] 5. Heard both sides and considered the submissions. 6. In this case, the facts not in dispute are that during the period 2005-06, the appellant availed SSI exemption and their sales turn over crossed the SSI exemption limit. It is a fact on record that in 2005, a search was conducted at the factory premises of the appellant and all relevant records have been scrutinized and it was found that appellant has crossed SSI exemption limit. Thereafter, the show cause notice has been issued on 19.11.08 by invoking the extended period of limitation. 7. In that circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Department alleging wilfull and intentional suppression of facts by the appellant. It is trite in law that the suppression (intentional and deliberate) can never be said to exist when material and relevant fact forming the basis of the demand were already within the knowledge of the department. Accordingly, the pre-conditions for applicability of the proviso to Section 73 (1) ibid cannot be said to be made and in such eventuality, the extended period of limitation cannot be invoked and the demand to be confined to the normal period of one year. 8. In context with issuance of show cause notice, where there is no involvement of suppression on the part of the assessee, the Hon ble Supreme Court in the case of Pragathi Concrete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation. The Hon ble Apex Court held that since the requisite information had always been provided to the Department when requested, no case of suppression could be made out against the assessee. Where the Department had inspected and collected necessary information and details from the assessee, the Hon ble Supreme Court in the case of Damnet Chemicals Pvt. Ltd. (supra) held that the relevant facts were within the knowledge of Departmental Authorities and accordingly the extended period of limitation could not be invoked. Where the Assessee had filed declarations of the products manufactured and where the sales literature and catalogue were examined during search operations, the Hon ble Supreme Court in the case of Pioneer Scientific G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 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 of tax (fraud, suppression, collusion, wilful misstatement or contravention of provisions) came to the knowledge of the Department. 10. On a collective reading of the decisions cited by both the counsels, it is clear that the consistent position of law with regard to applicability of the proviso to Section 73(1)/Section 11A ibid has been that suppression cannot be established where material facts were within the knowledge of the Revenue. Accordingly, where there is no suppression, the precondition for applicability of proviso to Section 73(1) cannot be said to be met and hence, ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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