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TMI Blog2018 (10) TMI 1560X X X X Extracts X X X X X X X X Extracts X X X X ..... the ordinary course of business. Such reflection of the activities in the profit and loss account has been held to be a reason for not allowing the revenue to invoke the extended period. Inasmuch as, profit and loss account is a public document and reflection of the entire facts in the said documents cannot lead to the presence of malafide suppression on the part of the assessee. Inasmuch as, in the present case there is admittedly no evidence to show any suppression or misstatement on the part of the assessee with a malafide intention, longer period of limitation was not available to the revenue - Inasmuch as, the entire demand is beyond the normal period, same is set aside along with setting aside of penalty. Appeal allowed - decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was confirmed by the Original Adjudicating authority along with confirmation of interest and imposition of penalties. 3. On appeal Commissioner (Appeals) modified the said order to the extent that the entire consideration received for the services was treated as cum tax value and accordingly the demand was reduced to ₹ 9,93,569/- along with reduction in quantum of penalty. The said order of Commissioner (Appeals) is impugned before the Tribunal. 4. Learned Advocate appearing for the appellant has assailed the order on the point of limitation. By drawing my attention to the allegations made in the show cause notice as also the findings of the Adjudicating authority and Appellate authority, it stands pleaded that there is no posit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e presence of malafide suppression on the part of the assessee. Apart from that I find that Hon ble Supreme Court in the case of M/s Uniworth Textiles Ltd. Vs Commissioner of Central Excise, Raipur reported at 2013 (288) ELT 161 (SC) has considered an identical situation and have observed as under:- 12. We have heard both sides, Mr. R.P. Bhatt, learned senior counsel, appearing on behalf of the appellant, and Mr. Mukul Gupta, learned senior counsel appearing on behalf of the Revenue. We are not convinced by the reasoning of the Tribunal. The conclusion that mere non-payment of duties is equivalent to collusion or willful misstatement or suppression of facts is, in our opinion, untenable. If that were to be true, we fail to understan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive act of the assessee to avoid paying excise duty. The terms misstatement and suppression of facts are preceded by the expression wilful . The meaning which has to be ascribed is, deliberate action (or omission) and the presence of an intention. Thus, invocation of the extended limitation period under the proviso to Section 73(1) does not refer to a scenario where there is a mere omission or mere failure to pay duty or take out a license without the presence of such intention. 7. Inasmuch as, in the present case there is admittedly no evidence to show any suppression or misstatement on the part of the assessee with a malafide intention and by following the above referred decisions, I hold that the longer period of limitation wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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