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TMI Blog2021 (11) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... . The appellant had, therefore, wilfully not declared the RSP of the imported goods with an intent to evade payment of appropriate customs duty on the imported goods. The provisions of section 11A of the Central Excise Act, which are pari materia to section 28(4) of the Customs Act came up for interpretation before the Supreme Court in PUSHPAM PHARMACEUTICALS COMPANY VERSUS COLLECTOR OF C. EX., BOMBAY [ 1995 (3) TMI 100 - SUPREME COURT] . The Supreme Court observed that section 11A empowers the Department to reopen the proceedings if levy has been short levied or not levied within six months from the relevant date but the proviso carves out an exception and permits the authority to exercise this power within five years from the relevant date in the circumstances mentioned in the proviso, one of it being suppression of facts - It is, therefore, clear that the suppression of facts should be deliberate and in taxation laws it can have only one meaning, namely that the correct information was not disclosed deliberately to escape payment of duty. In EASLAND COMBINES VERSUS COLLECTOR OF C. EX., COIMBATORE [ 2003 (1) TMI 107 - SUPREME COURT] , the Supreme Court observed that for inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant had cleared the said goods without disclosing the retail sale price [RSP] and in this connection reference was made to two Bills of Entry which were adjudicated upon by an order dated 24.11.2014 after investigation. Further investigation revealed that the appellant had in all imported 110 small consignments through courier terminal at Delhi and the consignments were cleared through courier not on RSP basis. It, therefore, appeared that the appellant had short paid customs duty amounting to ₹ 14,29,047/- for the period 21.12.2011 to 24.05.2014 and details were provided in the calculation sheet, which is reproduced below: CALCULATION SHEET Year UPS Jetair DHL Express Fedex TNT Total 2011-12 (after 20.12.11 204389 8345 67946 29864 310544 2012-13 412697 21578 23441 NIL 668 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the overseas supplier and the concerned courier company and the appellant had no role whatsoever. In fact the appellant received the goods and paid whatever charges were claimed by the courier company and no objection was ever raised by the customs authorities for assessment of the goods. The appellant was, therefore, not responsible for the alleged non declaration of RSP of the imported goods, nor was there any intent to evade payment of customs duty as was alleged in paragraph 17 of the show cause notice. It was, therefore, stated that the provisions of section 28(4) of the Customs Act could not have been invoked since the factual basis for invoking the extended period of limitation had not been made in the show cause notice. 6. The Additional Commissioner, however, by the order dated 30.10.2017 confirmed the demand of differential duty with interest and penalty. The relevant portion of the order is reproduced below: 27.2 Now the question is if they understood that the imported goods were subjected to CVD on the basis of RSP/MRP of the goods, then, being an honest tax payer, why they did not pay the duty on RSP while imported the goods through courier. It is true that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rier never consulted them. This is a lame excuse as the Courier company acts as per information given by their clients and it was duty of the appellant to inform the Courier company that their products attracted MRP/RSP . The suppression of the facts is evident as the appellant had knowledge of this aspect in as much as they were declaring MRP/RSP for imports through Air Cargo, Delhi but choose not to inform Courier companies in this regard. 5.5 As regards citation of various case laws by the Appellant is concerned, I find that the same have no bearing on the facts and circumstances of the impugned case as the facts are different then that of the case in hand. ( emphasis supplied ) 8. This appeal has been filed to assail the aforesaid order dated 12.03.2020 passed by the Commissioner (Appeals). 9. Shri Ashish Batra, learned counsel appearing for the appellant made the following submissions: (i) The authorized courier agent upon arrival of the goods in India filed the requisite courier Bills of Entry based on the declaration given in the respective invoices issued by the foreign consignor. After being assessed by the proper officer and payment of requisite duty, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice; PROVODED that before issuing notice, the proper officer shall hold pre-notice consultation with the person chargeable with duty or interest in such manner as may be prescribed. (4) Where any duty has not been levied or not paid or has been short-levied or short-paid or erroneously refunded, or interest payable has not been paid, part-paid or erroneously refunded, by reason of, (a) collusion; or (b) any wilful mis-statement; or (c) suppression of facts, by the importer or the exporter or the agent or employee of the importer or exporter, the proper officer shall, within five years from the relevant date, serve notice on the person chargeable with duty or interest which has not been so levied or not paid or which has been so short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice. 13. A perusal of sub-section (1) of section 28 of the Customs Act shows that where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the extended period of limitation. 17. It is not in dispute that the Bills of Entry were filed by the courier agent on the basis of the invoices issued by the Foreign Consigner and after assessment by the proper officer, the requisite duty was paid by the courier agent, which duty the appellant paid to the courier agent on receiving the goods. The show cause notice, therefore, proceeded on an incorrect assumption that the appellant had not declared the RSP of the imported goods with intent to evade payment of customs duty on the imported goods. The order passed by the Commissioner (Appeals) also records a finding that the charge of mis-declaration and suppression is justified as the appellant did not declare the RSP for imports through courier despite knowing that they were chargeable to RSP. The Commissioner (Appeals) further recorded a finding that a lame excuse had been setup by the appellant by shifting the burden to the courier, though it was the duty of the appellant to inform the courier that the goods attracted RSP. The goods were described as motor parts in the Bills of Entry and, therefore, it was the duty of the proper officer to assess them or seek further informa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Court in the case of Pushpam Pharmaceuticals Co. v. CCE we find that suppression of facts can have only one meaning that the correct information was not disclosed deliberately to evade payment of duty. When facts were known to both the parties, the omission by one to do what he might have done and not that he must have done, would not render it suppression. It is settled law that mere failure to declare does not amount to wilful suppression. There must be some positive act from the side of the assessee to find willful suppression. Therefore, in view of our findings made hereinabove that there was no deliberate intention on the part of the appellant not to disclose the correct information or to evade payment of duty, it was not open to the Central Excise Officer to proceed to recover duties in the manner indicated in the proviso to Section 11-A of the Act. We are, therefore, of the firm opinion that where facts were known to both the parties, as in the instant case, it was not open to CEGAT to come to a conclusion that the appellant was guilty of suppression of facts. (emphasis supplied) 22. In Easland Combines, Coimbatore vs. Collector of Central Excise, Coimba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suppression of facts unless it was deliberate to stop the payment of duty. Suppression means failure to disclose full information with the intent to evade payment of duty. When the facts are known to both the parties, omission by one party to do what he might have done would not render it suppression. When the Revenue invokes the extended period of limitation under Section 11A the burden is cast upon it to prove suppression of fact. An incorrect statement cannot be equated with a wilful misstatement. The latter implies making of an incorrect statement with knowledge that the statement was not correct. ( emphasis supplied ) 25. As noticed above, there is no mis-statement or suppression of facts by the appellant. The basic ingredients for invoking the extended period of limitation do not, therefore, stand satisfied. For this reason alone, the order impugned cannot be sustained and is liable to be set aside. 26. It would, therefore, not be necessary to deal with the other submissions advanced by the learned Counsel for the appellant. 27. The order dated 12.03.2020 passed by the Commissioner (Appeals) is, therefore, set aside and the appeal is allowed. 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