TaxTMI 
TaxTMI 
2019 (2) TMI 1097
X X X X Extracts X X X X
X X X X Extracts X X X X
....on the point of time bar was set aside, and the matter stand remanded for fresh decision, in the light of the directions contained therein. Accordingly we have heard Shri R. Santhanam, learned Advocate for the appellant and Shri Mohd. Altaf, learned Assistant Commissioner (A.R.) for the Revenue. 2. As per facts on record, the appellant is engaged in the manufacture of automobile parts classifiable under chapter heading 3916.90 of the schedule to the Central Excise Tariff Act. The appellant was also engaged in import of various items. During the period 2003 to July 2014, the appellant imported goods under 11 Bills of entries and cleared the same on payment of additional Customs Duty. The said additional Customs Duty was not paid by the appe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....avour of the assessee. However Tribunal by referring to Hon'ble Supreme Court decision in the case of CCE Vs. Sunwin Techno solution Pvt. Ltd. [2011 (21) S.T.R. 94 (S.C.)] rejected the appeal on merits. However, the Tribunal took into consideration the assessee's plea that demand was raised by invoking the longer period of limitation and by referring to the earlier decisions held that as there was confusion in the field on the disputed legal issue and by referring to the earlier decision of the Tribunal in the case of LNM Auto Industries Pvt. Ltd., the benefit of limitation was extended to the assessee. 5. Revenue being aggrieved with the said order of the Tribunal filed an appeal there against before the Hon'ble Allahabad High Court, whi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ust 2004 i.e. by invoking the extended period of limitation in terms of the proviso to section 11A of the Central Excise Act. The said proviso provides that in case duty has not been paid on account of fraud, collusion, willful misstatement, suppression of facts or contravention of any of the provisions of the act or the rules made thereunder with intent to evade payment of duty, the period of five years is available to the Revenue to serve notice on such person for such short paid duty. The said expression appearing in section 11A has been the subject matter of various decisions of the Supreme Court. Reference can be made to the Hon'ble Supreme Court decision in the case of Collector of Central Excise vs. Chemphar Drugs reported as 1989 (4....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g to taking of Cenvat Credit on the strength of Bills of Entry on which additional duty of Customs (CVD) has been paid through DEPB adjustment has not been incorporated in either of the aforesaid returns. The party had also not submitted the aforementioned Bills of entries to the department so that the department could have knowledge to material information contained therein. Thus material information relevant for scrutiny of above returns were suppressed and concealed from the department. The party had deliberately concealed the facts with the department with intent to evade the central excise duty by debiting the duty through DEPB scheme. Accordingly, the party suppressed the fact by not following the procedure as prescribed and availed/u....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssessee to disclose the above information. In the absence of any requirement to disclose in the said returns, the factum of payment of CVD through DEPB, we are of the view that non-disclosure, by itself cannot be made the ground for invocation of extended period. The Hon'ble Supreme Court in the above-referred matters have clearly observed that a mere failure of the assessee to disclose the information, by itself cannot be held to be a ground for invocation of extended period unless such non-disclosure was on account of any mala fide. In the present case there was no legal obligation on the assessee to disclose the requisite information in the ER-1 returns, in the absence of any clause or requirement in the said reports. As such the mere fa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oint Venture vs. Commr. [2004 (216) E.L.T. 177 (SC)]. laying down that if there are varying different views holding the field during the relevant period and the issue is finally decided by the larger Bench, the assesee cannot be held guilty for any mala fide or mis-statement with intent to evade payment of duty. 11. As we have already observed that there were decisions laying down in favour of the assessee, in view of the said decision of the Hon'ble Supreme Court, he cannot be held guilty of any mis-statement or suppression with intent to evade payment of duty. 12. Further in terms of the direction of the Hon'ble High Court, we have also examined the applicability of the Supreme Court's decisions in the case of Nicholas Piramal India Ltd....