TaxTMI 
TaxTMI 
2019 (12) TMI 238
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.... 2. The appellant responded to the above Statement of Demand vide its reply dated 03.04.2018 wherein it was inter alia contended that the CENVAT Credit was availed by it on the rental charges paid in respect of the premises which was used as an office space by the appellant itself; that as per law, the CENVAT Credit in respect of rented premises, whether factory or outside, could be availed if the services of rental were in relation to the manufacture of goods; that the appellant had used the rental premises as its office space which was required for undertaking the manufacturing activities; that the rental agreement in respect of the impugned rental premises was terminated after setting up of the appellant's factory, etc. The appellant also raised a serious dispute with regard to the Show Cause Notice being barred by limitation. 3. The Adjudicating Authority, however, vide Order-in-Original No. 04/2019-Adj dated 28.01.2019 confirmed the demand. The appellant also having not met with success in its first appeal before the Commissioner of G.S.T. and Central Excise (Appeals-II), Chennai, has filed the present appeal. 4. When the matter was taken up for hearing, Shri. Tanuj Haz....
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....: "24. As noticed in the excerpted portions of the Supreme Court's judgment, the material distinction between the provisos of Section 11A of the Excise Act and Section 28 of the Customs Act was contemplated in Associated Cement Co. Ltd. v. Commissioner of Customs (supra) [2001 (128) E.L.T. 21 (S.C.)]. The only material difference in the language of the two provisions is that the phrase 'with intent to evade payment of duty' is not used in Section 28 of the Customs Act. The Court held that the words 'fraud' and 'collusion' inherently imply the requirement of an intent, which in this case is the intent to evade payment of duty. With respect to misrepresentation and suppression of facts the Court held that the fact that these words are preceded by the word 'wilful' means that there should be an intention to evade payment of duty behind these acts. And, therefore, in Uniworth (supra), the judgments of the Supreme Court interpreting the proviso to Section 11A of the Excise Act were applied in the interpretation of the proviso to Section 28 of the Customs Act. 25. The meaning of the phrase pari materia has been explained in an American case in the following words: "Stat....
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....s fit for the applicability of the proviso. ....... 14. In Sarabhai M. Chemicals v. Commissioner of Central Excise, Vadodara [(2005) 2 SCC 168], a three-judge bench of this Court, while referring to the observations extracted above, echoed the following views : "23. Now coming to the question of limitation, at the outset, we wish to clarify that there are two concepts which are required to be kept in mind for the purposes of deciding this case. Reopening of approvals/assessments is different from raising of demand in relation to the extended period of limitation. Under Section 11A(1) of the Central Excise Act, 1944, a proper officer can reopen the approvals/assessments in cases of escapement of duty on account of non-levy, non-payment, short-levy, short-payment or erroneous refund, subject to it being done within one year from the relevant date. On the other hand, the demand for duty in relation to extended period is mentioned in the proviso to Section 11A(1). Under that proviso, in cases where excise duty has not been levied or paid or has been short-levied or short-paid or erroneously refunded on account of fraud, collusion or wilful misstatement or sup....
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....ement was not correct. " 27. Therefore, it is evident that failure to pay tax is not a justification for imposition of penalty. Also, the word 'suppression' in the proviso to Section 11A(1) of the Excise Act has to be read in the context of other words in the proviso, i.e. "fraud, collusion, wilful misstatement". As explained in Uniworth (supra), "misstatement or suppression of facts" does not mean any omission. It must be deliberate. In other words, there must be deliberate suppression of information for the purpose of evading of payment of duty. It connotes a positive act of the assessee to avoid paying excise duty. The terms 'misstatement' and 'suppression of facts' are preceded by the expression 'wilful'. The meaning which has to be ascribed is, deliberate action (or omission) and the presence of an intention. Thus, invocation of the extended limitation period under the proviso to Section 73(1) does not refer to a scenario where there is a mere omission or mere failure to pay duty or take out a license without the presence of such intention. 28. In the present case, the Revenue argues that appellant wilfully suppressed the value of taxable services and thus di....