2005 (12) TMI 154

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..... en raised beyond the permissible time limit, inasmuch as there was no 'wilful' suppression of facts by the appellants 'with intent to evade payment of duty' so as to attract the extended period stipulated in the proviso to Section 11A. The submission of the learned Counsel for the appellants is that a perusal of the findings of the Commissioner would make it clear that these cases do not satisfy the ingredients like wilful suppression or misstatement of facts or fraud which allow of issuing demands beyond the normal period and up to five years. 4. The finding of the Commissioner on the issue of limitation is on identical terms in all these cases. We may read the finding in the case of the first appellant as representative : "As regards .....

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..... der with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, as if, for the words "one year", the words "five years" were substituded." 6. As against the above requirement of law, the first finding of the Commissioner is that the assessee is not "totally innocent". A finding far short of the requirement under law. Even if that finding is taken as a finding of guilt against the appellants, the further observation of the Commissioner in regard to nature of civil contracts completely undermines that finding. For, the Commissioner notes that "it cannot be presumed that in the process of execution of the civil contract the manufacture of any excisable goods would also be necessari .....

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..... at affixing of a label makes no difference does not make a declaration, and then there would be no wilful mis-declaration or wilful suppression. If the Department felt that the party was not entitled to the benefit of the Notification, it was for the Department to immediately take up the contention that the benefit of the Notification was lost." In the light of the above legal position and the finding of the Commissioner, the demands have to fail on the ground of limitation. 8. While on the question of limitation, we may also note that the issue of dutiability of structures and parts thereof came to be concluded in favour of the Revenue only by the recent judgment of the Larger Bench of this Tribunal in the case of Mahindra Mahindra L .....

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