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TMI Blog2019 (6) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... been issued on the basis of change in opinion without taking into cognizance of the practice already followed by assessee in which case there cannot be said to be any suppression on the part of the assessee. Further, on perusal of the entire SCN, except the allegation of suppression to invoke extended period of limitation, I do not find any specific instance to show that the assessee deliberately suppressed any information from the Department. Moreover the whole issue has arisen due to lack of knowledge in complying with the central excise procedure since the levy of central excise duty was introduced for the first time with effect from March 2011 and the assessee was new to the subject. In the instant case, the appellant is a PSU and wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t did not resort to Provisional Assessment under Rule 7 of the Central Excise Rules, 2002, for payment of duty, the prices agreed with the coal buyer is always provisional which is finalised after the closure of the respective financial year and subject to adjustment of ash content in the washed coal. 3. The appellant made suo-moto adjustment of excess duty of ₹ 29,80,320/- for the period of 2011-12 to 2012-13 for which a Show Cause Notice (SCN) dated 5th August, 2016 came to be issued. In the said SCN, a short payment of duty of ₹ 5,39,617/- for the period February 2012 was also alleged. The Ld. Assistant Commissioner, Central Excise and Service Tax, confirmed the demand along with equivalent penalty and applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was duly submitted. (also reproduced in the impugned SCN in page no. 4). It is his submission that the audit objection was well-settled and no action was proposed to be taken against the appellant for the self adjustment of duty issue. No attempt was made in the entire SCN or the impugned OIO to justify how the audit objection of self adjustment got revived, though it was dropped in 2014 and duly communicated to the appellant. He also referred to Circular no. 985/9/2014-CX dated 22.9.2014, issued under F. No. 206/03/2014-CX.6, para no. 5.1, wherein it is mentioned that Monitoring Committee Meeting (MCM) should be convened by Audit Commissionerate, for which the Executive Commissioner or his representative will be invited to attend. The de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be relied upon in view of the fact that the judgment of the Hon ble Karnataka High Court was not brought to the notice of the Larger Bench when they heard the Larger Bench reference. The Ld. CA also submitted that claiming of refund of excess duty payment instead of suo-moto adjustment will not have any financial implication either on the appellant or revenue department. There is no loss of revenue to the government. He stated that the situation would be completely revenue neutral, in which case the extended period of limitations cannot be invoked as has been held by the Apex Court in Nirlon Ltd. v. CCE, Mumbai 2015 (320) E.L.T. 22 (SC). On the second issue with regard to alleged short payment of duty of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciate that even if there is no specific provision to file the revised return, the assessee cannot be left rudderless and there was no error in submitting the correct facts and figures by way of filing revised return. The assessee has submitted the actual amount of duty of ₹ 1,04,54,696/- instead of ₹ 1,09,94,313/- wrongly shown in the original return. He further contested the demand on time bar and submitted that the appellant being a PSU cannot have intent to evade payment of duty. He relied on the Apex Court s decision in the case of CCE, Chennai vs. Chennai Petroleum Corporation Ltd. 2007 (211) ELT 193 (SC), as well as this Tribunal s decision in the case of CCE Indore vs. Nepa Ltd. 2013 (298) ELT 225 (Tri-Del) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ER-1 return has been filed by stating the duty amount of ₹ 1,09,94,313 for the month of February 2012, the assessee could not subsequently reduce the duty amount to ₹ 1,04,54,696/- by taking shelter of filing revised return inasmuch as there was no legal provision to file the revise return and in that case the proper course would have been to file a refund claim. 7. Heard both sides and perused the appeal records. 8. On perusal of the entire case, I am of the view that the case of the appellant can be decided on the ground of limitation inasmuch as the period in dispute is March 2011 to March 2013 for which the SCN has been issued in August 2016 by invoking extended period of limitation. The fact r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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