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TMI Blog2008 (12) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... ade the duty. Therefore, such fact in this case cannot in our considered opinion draw the benefit to the respondent for extension of the period of limitation as provided under the Statute. X X X X Extracts X X X X X X X X Extracts X X X X ..... ant. According to Mr. Ghosh by not doing so the said authorities have failed to perform their duties and as a result whereof it cannot be said that the appellant has suppressed the material fact from the said authority or did it fraudulently or with an intention to evade duty or conceal any such fact which can invoke the penalty or the other proceedings as taken by the said authority against the appellant. He further submitted that the show cause notice would show that it is dated 19-10-2000 whereas all these returns were filed and the last of such return was filed by the appellant on January 1999, thereby the service of such show cause notice would have been completed by the authorities on or before July or August 1999 and since there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act would depend upon the question as to whether such short-levy was due to any act of fraud, collusion, willful misstatement or suppression of facts, (sic) the extended period of Limitation of five years could not have been invoked. 67. Such an extended period of limitation can be invoked only if a positive act of fraud etc. on the part of the assessee is found. Such a positive act must, be in contradistinction to mere inaction like non-taking of licence etc. It has to be pleaded and established. (See Padmini Products, P&B Pharmaceuticals Ltd. and Pushpam Pharmaceuticals Co.)." 3. Therefore, according to him the extension should be only invocation (sic) if there is a positive act of fraud etc. on the part of the assessee is found. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other respects the order made by the Tribunal is maintained." 5. He also relied upon a decision reported in 2005 (184) E.L.T. 117 (S.C.) (Primella Sanitary Products Pvt. Ltd. v. Collector of C. Ex., Goa) at paragraph 12 thereof which is also reproduced hereunder: "..............The only reason given for upholding the extended period of limitation is that the party had not disclosed the composition of their product and that they had not disclosed what material was used in their product. We, however, find that with each classification list a statement had been annexed showing the manufacturing process. In the manufacturing process it has been clearly mentioned that "rayon grade wood pulp" was being used. Thus, the material used was disclos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is no warrant to invoke larger period of limitation or to impose penalty and to that extent we uphold the order of the Tribunal." 8. Mr. Bose appearing on behalf of the respondent tried convince us by stating that the appellant tried to suppress the material facts from the authority although it was well within the knowledge of the appellants that the notification came into operation even at the time of filing of the returns but even then they did not take any steps in the matter and furthermore, he drew our attention that it is the liability on the part of the appellant to disclose the full particulars and also it was the duty of the appellants to take note of the said notification since ignorance of law is not an excuse and they perh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn by the assessee and at that point of time it was the duty of the authority to point it out before the assessee and take necessary steps accordingly within the period mentioned under the rules. Therefore; after taking such fact in our considered opinion we cannot at this stage state that there is any intention to evade tax by the appellant as it would be evident from the fact that even in the income tax matter and other matters if any person is asked to get any benefit out of a Section he may take steps and can specifically make such claim in the return so to be filed by him and in case he is entitled to get such relief under the said provisions of law then automatically he will get such benefit otherwise it is always the duty of the auth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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