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TMI Blog2018 (2) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... was conducted for the period July 2007 to March 2008 by the Central Excise department. During the course of audit, it revealed that the finished goods/raw materials were found in excess, as against the stock particulars available in the statutory records i.e. Daily Stock Account (DSA). On further investigation of the matter, the department initiated show cause proceedings against the appellant, seeking confirmation of the duty demand on the alleged ground of clandestine removal and also for imposition of penalty. The show cause notice issued in this regard was adjudicated vide order dated 18.9.2012, wherein the adjudged demand were confirmed against the appellant. The ld. Commissioner (Appeals) vide the impugned order has upheld the adjudg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20.8.2008 to 22.8.2008, the show cause notice was issued by the department on 19.8.2011. It is an admitted fact on record that the show cause notice has not been issued in this case within the normal period of one year provided under Section 11A of the Central Excise Act, 1944. Since, between the period of conducting such audit in August, 2008 and issuance of the show cause notice in August, 2011, the department has not gathered any additional information for initiation of the show cause proceedings, it cannot be said that the show cause notice issued in August 2011, is sustainable on the ground of limitation. I find that in context with the limitation aspect, the Hon'ble Allahabad High Court in the case of Triveni Engineering & Industries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there would be no wilful misdeclaration or wilful suppression. If the Department felt that the party was not entitled to the benefit of the Notification, it was for the Department to immediately take up the contention that the benefit of the Notification was lost." 8. Similarly in Commissioner of C.Ex. Mumbai-IV v. 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 withholding of information by the assessee. There has been no willful misstatement much less any deliberate and wilful suppression of facts. It is settled law that in order to invoke the proviso to Section 11A(1) a mere mis-statement could not be enou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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