TaxTMI 
TaxTMI 
2022 (1) TMI 808
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....ties under section 11AC of Customs Act, 1962 and rule 173Q of Central Excise Rules, 1944 were set aside, is the confirmation of differential duty of Rs. 3,98,140/- under section 11A of Central Excise Act, 1944 on a premise, and erroneously so as contended by the appellant, of '7. On the other hand, I find that the Appellants, in course of personal hearing held before me on 19.10.2012 have submitted that did not want to pursue their contentions on the merit i.e confirmation of demand of differential duty by the Adjudicating Authority.... However it was not denied by them that they had failed to file a Price list under Rule 173C of the erstwhile Central Excise Rules, 1944 to the department.' as sufficing to ignore their contest of....
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....overy of duty. Reliance was placed on the decision of the Hon'ble High Court of Bombay in Saswad Mali Sugar Factory Ltd. Commissioner of Central Excise, Pune-III [2014 (33) STR 481 (Bom)] holding that '9. We find that the condition for invocation extended the period of limitation as provided under Section 73 of the Act and the condition precedent for imposing penalty under Section 78 of the Act are identical viz. there should be either the fraud, collusion or wilful mis-statement or suppression of facts or contravention with intent to evade payment of Service Tax. Once the Commissioner (Appeals) has come to a finding that for the relevant period, there was genuine cause for confusion regarding the correct legal position and also sc....
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....l in V Dhanpal v. Commissioner of Central Excise, Madurai [2010(251) ELT 247 (Tri-Chennai)] and in Kaveri Alloy Castings Pvt Ltd v. Commissioner of Central Excise, Pondicherry [2007 (219) ELT 173 (Tri-Chennai)] to contend that setting aside of penalty cannot extinguish demand and that a plea that had not been raised when the matter was remanded is not permitted to be raised thereafter. 6. That an appellant chooses not to pursue argument on merit and prefers to restrict themselves to the bar of limitation does not, of itself, imply acceptance of liability. That such an issue was not raised on the former occasion before the Tribunal cannot preclude its relevance on the later occasion especially in the light of fresh finding by the first ap....
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....ful mis-statement or suppression of facts with an intention to evade payment of duty. Reliance in this regard may be placed on the following case laws:- (i) COLLECTOR OF CENTRAL EXCISE vs. CHEMPHAR DRUGS & LIN1MENTS-1989 (40) E.L.T. 276 (S.C.) wherein it is held that- "Demand - Limitation - Extended period of five years applicable only when something positive other than mere inaction or failure on the part of manufacturer is proved." (emphasis supplied) (ii) COMMR. OF CUS. & C. EX., HYDERABAD vs. MAHALAKSHM! PROFILES LTD. - 2012 (279) E.L.T. 355 (A.P.), wherein it is held that- "Element of fraud, collusion, wilful mis-statement, suppression of facts or contravention of any of provisions of Act or the Rule....