TaxTMI 
TaxTMI 
2018 (2) TMI 12
X X X X Extracts X X X X
X X X X Extracts X X X X
....rarely has the Tribunal's findings and conclusions been accepted with the required degree of grace and maturity by the Revenue Officials. Some of the Senior Revenue Officials may not feel anything about lack of the above, but we must express our strong displeasure when they doubt the correctness, authenticity of the findings and conclusions on such points or issues as also the bona fides of their own colleagues who occupy the position of an Adjudicating Authority or Officer. It is the Commissioner or the Commissioner (Appeals) or the Member (Technical) of the Tribunal who invariably, sitting as an Adjudicator, finds it difficult to uphold the stand of the Revenue and when it is ex facie untenable in law. If it is not supported by facts and the provisions of law, he is bound to decide the matter in favour of the assessee and against the Revenue. When this happens, it is for the Revenue Officials to ponder and introspect whether they should challenge the order in the higher Court, waste the higher Court's precious time and which it desires to save for genuine litigation. When we find that conclusions on mixed question of fact and law like limitation are challenged, the Revenu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e respondents/Mahindra & Mahindra Limited carried on business of manufacturing of motor vehicles and parts thereof, falling under Chapter 87 of the First Schedule to the Central Excise Tariff Act, 1985. During audit conducted in January, 2001, it was noticed that the assessee was clearing motor vehicles from the factory to the Regional Sales Office on payment of duty on the assessable value determined on the basis of sale value of identical vehicles from the same Regional Sales Office. In some cases, it was noticed that such vehicles were transferred to another Regional Sales Office due to cancellation of orders at the earlier Regional Sales Office or due to requirement at the other Sales Office. The intra­depot transfers also take place in other exigencies. In such cases, it was noticed that the assessee was charging higher price from the customers, being higher than the value on which excise duty has been paid. This differential excise duty on the increased sale value after transfer to another Regional Sales Office and sales therefrom, according to the Revenue, results in evasion or short­payment of excise duty and which was required to be paid on the actual sales value. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., then, it could not have waited till 19­-7­-2005 to issue a Show Cause Notice and seek to recover the sum of short-­duty levied from July, 2000 to September, 2004. It could not have also collected and recovered the duty from February, 2001 to June, 2004. Thus, the Show Cause Notices which are issued from 19-­7-­2005 to 16-­9-­2010, but seeking to recover amounts beyond the normal period of limitation, were held to be time barred on the reasoning that the suppression was detected in January, 2001 itself. The Revenue should have been vigilant and not negligent and issued the Show Cause Notices promptly. It allowed the normal period to lapse and thereafter issued the subject-­notices. 10. It is such an order of the Revenue which according to Mr. Bangur, appearing for the appellant in support, raises as many as four substantial questions of law. 11. They are proposed at pages 8 and 9 of the paper­book. Mr. Bangur would submit that the Tribunal was not right in holding that the date of information received in the course of audit about suppression of sales value was the relevant date for determining the period of limitation. Mr. Bangur would sub....
X X X X Extracts X X X X
X X X X Extracts X X X X
....have been invoked and applied in allowing the assessee's appeals. She would submit that the present appeal be dismissed with heavy costs. 14. Upon perusal of the appeal paper­book with the assistance of both Advocates, we agree with the assessee's counsel. 15. It is not as if the five appeals brought before the Tribunal dealing with five orders of the Commissioner (Appeals) were decided unmindful of the factual position. The Tribunal proceeded appeal wise. In the first matter being Appeal No.E/120/2012, the period was July, 2000 to March, 2010. The duty proposed in the Show Cause Notices is Rs. 2,39,39,010/­, confirmed in the sum of Rs. 1,33,69,135/­ with commensurate penalty. In the second matter being Appeal No.E/262/2012, the period is April, 2010 to September, 2010 where the duty demand is of Rs. 2,24,467/­, confirmed in the sum of Rs. 20,588/­ with equal penalty. In the third matter being Appeal No.E/89435/2013, the period covered is October, 2010 to August, 2011 and the amount as demanded is Rs. 4,98,764/­, confirmed to the extent of Rs. 1,45,202/­ with equal penalty. In the fourth matter being Appeal No.E/87013/2013, the period is Se....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ials, then subsequent to that period it could not be alleged by the Revenue that there was a suppression on the part of the assessee. The demand for the period February, 2001 to June, 2004 becomes time barred. That is how the Tribunal dropped it. Then, the Tribunal considered the matter on equal penalty and relying on the language of Section 11AC it dropped the penalty as well. 18. Paras 5 and 5.1 of the order under appeal, to the extent relevant, read as under:­ "5. ...... On consideration of submission on limitation and invocation of proviso to section 11A, we find that as regards first show cause notice dated 19.7.2005, the fact regarding moment of their vehicle, transfer to 2nd depot and sale of vehicle from 2nd depot was not disclosed to the Department. This fact was detected by the audit officers, therefore it is clear that there is suppression of fact on the part of the appellant. Once the fact during a period was suppressed, demand of that period can be raised up till 5 years. In the present case, the demand for the period prior to audit observation raised on January 2001, can be raised up to 5 years as there was clear suppression during that period. Hence, the de....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cordance with law. The Appeals are disposed of in the above terms." 19. In the teeth of these observations, we do not see how Mr. Bangur can derive any support from the Judgment of the Hon'ble Supreme Court in Mathania Fabrics (supra). 20. The Tribunal in that case came to the conclusion that the appellants were engaged in the processing of cotton fabrics falling under Chapter 52. They claimed to be undertaking the processes of bleaching, etc., before the fabrics were packed and cleared. Their stand was that they were not using power in the processing of the fabrics and, therefore, they were availing of the benefit of Note 3 to Chapter 52. They had not used any power while undertaking the activities before the fabrics were packed and cleared. They also relied upon certain Notifications. The stand of the Revenue was that the amendment to the Notification was not retrospective. The CESTAT upheld this stand of the Revenue. Factually, it was held that power was used. 21. The assessee then could not have argued otherwise and claimed benefit of the exemption granted to cotton fabrics processed without the aid of power. Then, they altered their argument or stand and contended....
X X X X Extracts X X X X
X X X X Extracts X X X X
....evant date. Merely because the Department acquires knowledge of the irregularity, the suppression would not be obliterated. Pertinently, there is no observation in this Judgment on a point of law that once such suppression was detected as before us, the Revenue can raise and sustain the demand for the period subsequent to issuance of the Show Cause Notice in the absence of any fresh act of the above nature. The observations in para 20 of the Judgment of the High Court of Gujarat, therefore, emphasises that merely because the Department acquires knowledge of the irregularities, the suppression cannot be obliterated. The Tribunal's reasoning was therefore not upheld. This is not a controversy before us. The controversy before us is not about the Tribunal understanding the matter erroneously or even construing the provision of law otherwise than consistently interpreted by the Hon'ble Supreme Court. The argument before us is that all the Show Cause Notices and the demands raised therein were not sustainable as they were within the extended period. The relevant date in the case before us should be reckoned, according to the Revenue by reference to the provision as prevailing on....