TaxTMI 
TaxTMI 
2021 (12) TMI 427
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....w and in facts to hold that the demand under the show cause notice was not barred by law of limitation ? 2. The facts relevant for answering the aforesaid substantial question of law are that it is the case of the appellant that it is engaged in the manufacture of mechanical gates, parts and hoists that are required to be installed on dam constructed by the Government of Maharashtra. The work of construction of dams was undertaken by the Irrigation Department and as a part of that, the gates and hoists manufactured were supplied to the said Department. These goods were exempt from payment of excise duty in view of the exemption Notification No.74/1993 dated 28.2.1993. On 1.4.1996 Maharashtra Act No. XV of 1996 was enacted and the Vidarbh....
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....taining the demand of duty under Section 11A(1) as well as penalty imposed under Section 11AC of the said Act. The penalty imposed under Rule 173Q of the Central Excise Rules, 1944 (for short, "the said Rules") was, however, set aside. Being aggrieved by the aforesaid adjudication the appellant has preferred this appeal. 5. Smt. Sharda Wandile, learned counsel for the appellant submitted that the proviso to Section 11A(1) of the said Act had been wrongly invoked by the revenue for demanding central excise duty for the period beyond one year. The proviso under Section 11A(1) of the said Act could be invoked only if there was any wilful mis-statement or suppression of facts with an intention to evade payment of duty. There was no material ....
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....by placing reliance upon the decision in Collector of Central Excise, Hyderabad vs. M/s. Chemphar Drugs and Liniments, Hyderabad, reported in (1989) 2 SCC 127, M/s. Padmini Products vs. Collector of Central Excise, Bangalore, reported in AIR 1989 SC 2278 and Cosmic Dye Chemical vs. Collector of Central Excise, Bombay, reported in (1995) 6 SCC 117 submitted that unless it was shown that there was any intention to evade central excise duty, the extended period of limitation of five years would not become available for initiating such proceedings. The Commissioner as well as Tribunal failed to take into consideration this vital aspect and merely by holding that the appellant was guilty of suppression of facts proceeded to uphold the show cause....
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....xemption Notification No.74/1993 dated 28.2.1993 the goods falling under the heading 73 and 84 of the Schedule were exempted from payment of central excise duty. On 1.4.1986 the Corporation came to be established and it is thereafter that the demand of central excise duty from 1997-1998 to 1999-2000 came to be raised by issuing show cause notice dated 30.3.2001. In the show cause notice it has been stated that the appellant suppressed the fact of manufacture and clearance of excisable goods with a view to evade payment of central excise duty. For this purpose the Directorate relied upon the statement of Executive Engineer, who stated about the procedure adopted by the appellant in this regard. In view of the fact that the appellant had not ....
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.... excisable or required to be licenced, would not attract the penal provisions of Section 11A of the Act. If the facts are otherwise, then the position would be different." 9. This view has been reiterated by a larger Bench in Cosmic Dye Chemical (supra) while holding that mis-statement or suppression of facts must be wilful on the part of the manufacturer or producer. Mere suppression or mis-statement of facts if not wilful would not be a sufficient ground. From the aforesaid it is clear that there has to be material on record to hold that with an intention to evade payment of central excise duty there has been mis-statement or suppression of facts. 10. When the material on record is perused it becomes clear that in the reply to the s....
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....ion of central excise duty which aspect could be distinguished when such liability is saddled on a private person. The fact that after 1.4.1996 the appellant did not immediately register itself to enable payment of central excise duty itself indicates the fact that the appellant was acting under its bona fide belief that such duty was not liable to be paid by it. 11. It is thus found that satisfaction recorded initially by the Commissioner and then by the Tribunal as regards the intention of appellant to evade payment of central excise duty is without any supporting material on record. As clarified in Cosmic Dye Chemical (supra) it could not be said that there could be suppression or mis-statement of facts which even though not wilful wo....