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TMI Blog2023 (9) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice, hence, not sustainable in law. Further, it is found that the show cause notice was issued on 09.11.2010 which was received by the appellant on 16.11.2010 for the period pertaining to 2007-08 by invoking the extended period of limitation without the ingredients present as required under Section 11A(4). Further, it is found that the appellant has regularly been filing the ER-1 returns which was scrutinized by the department and the department never raised the objection regarding the irregularity committed by the appellant. Further, department has not been able to bring on record anything to show that the appellant has suppressed the material fact in order to evade the payment of duty. The entire demand is barred by li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unting to Rs. 44,473/-. The appellant contested the audit objection by writing letters stating that they have not short paid duty and has charged the duty as per the terms in the purchase orders. Further, on the insistence of range officer they have debited total amount of Rs. 44,473/- under protest vide letter dated 21.10.2010 along with Form-R for refund thereof. Thereafter, show cause notice dated 09.11.2010 was received on 16.11.2010 from AC, C.E. Kundli, demanding duty of Rs. 1,88,597/- under Section 11A(2) by invoking the extended period of limitation. The appellant filed detailed reply to the show cause notice. 4. After following the due process, original authority confirming the demand of Rs. 1,88,597/- and appropriated the amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice. He further submitted that both the authorities below have not dealt with the grounds raised by him before them and has ignored their submissions and mechanically confirmed the duty demand without application of mind. 7. On the other hand, Ld. AR reiterated the findings of the impugned order and submitted that the appellant has under valued the impugned goods and has not included transportation and packaging and forwarding charges in the assessable value. He further submitted that the appellant has not forwarded the purchase orders to the department and therefore concealed the material facts from the department and the department has rightly invoked the extended period. 8. After considering the submission made by both the parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the appellant has suppressed the material fact in order to evade the payment of duty. 5.6 Further, it is a well settled position established by the Hon'ble Supreme Court in the case of Anand Nishikawa Co. Ltd. v. CCE 12005 (188) ELT 0149 (S.C)] that to invoke the provisions of extended period, mere misstatement or suppression could not be enough. The requirement in law is that such mis-statement or suppression of facts must be willful. To enunciate this, relevant extract of the judgment reads as under: 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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