TaxTMI 
TaxTMI 
2022 (6) TMI 911
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.... captively consumed by the Appellant for further manufacture of their finished goods namely MS Round. It has been noticed by the department that the cost of Sponge Iron procured from their related unit was revised to Rs.7,787.48 PMT, Rs.8,046.43 PMT and Rs.8,210 PMT pertaining to the year 2004-05, 2005-06 and 2006-07 respectively as per costing method (CAS-4) and the differential cost worked out to Rs.73,27,979/-, Rs.79,67,028/- and Rs.93,29,594/- totaling to Rs.2,46,24,602/- and the related manufacturing unit raised supplementary invoices in favour of the Appellant relating to the above period on which Cenvat credit has been availed and utilized by the Appellant. But the differential value of sponge iron, being the major unit for manufacture of MS Ingot/MS Round was not taken into consideration for the cost of finished goods i.e. MS Ingots/MS Round by the Appellant. It has been further noticed by the department that the Appellant did not maintain cost sheet for manufacture of MS Ingot which was captively consumed for manufacture of MS Round. Accordingly, a show cause notice dated 31.10.2011 was issued for the period from 01.04.2004 to 31.10.2006 was issued to the Appellant invokin....
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..... Hence, the demand for the period 01.04.2004 to 30.09.2006 is unsustainable in the eyes of lawand liable to be set aside on this ground alone. 3.2 Demand beyond one year (i.e. October 2006) is liable to be set aside inasmuch as extended period cannot be invoked in the present case. It was submitted that extended period of five years cannot be invoked in the present case inasmuch as there is no evidence adduced by the department to show that duty has not been paid due to suppression of facts or willful misstatement with intention to evade payment of duty. It was submitted that show cause notice is silent on this aspect. Hence the demand is completely time barred. The present case has been booked based on the audit objection by scrutinizing the financial records of the Appellant. It is well settled law that extended period cannot be invoked if the demand is based on audit objection. In support of his submissions, the Appellant relied upon following case laws:- a) Uniworth Textiles Ltd. Vs. CCE, Raipur [2013 (288) ELT 161 (SC)] b) Aditya College of Competitive Exam. Vs. CCE, Visakhapatnam [2009 (16) STR 154 (Tri.-Bang.)] (c) Mega Trends Advertising Ltd. ....
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.... of Central Excise duty liability for the period beyond five years from the date of the show cause notice and the Adjudicating authority has also confirmed the same, which has been further upheld by the Ld.Commissioner(Appeals). We find that the show cause notice is issued on 31.10.2011 while the demands have been confirmed for the period from 01.04.2004 to 31.10.2006. In our view, the provisions of Section 11A of the Central Excise act, 1944 mandates recovery of the tax not paid/short paid for a period of up to five years by invoking extended period. The show cause notice dated 31.10.2011 definitely cannot demand Central Excise duty liability for the period prior to October 2006. To that extent, demand of Central Excise duty liability which is confirmed for the period from 01.04.2004 to 31.09.2006 is liable to be set aside and we do so. 7. As far as for the remaining demand for the period i.e. October 2006 falling under five years of limitation and beyond one year of limitation, we find that apart from the general aversion, there is no evidence to show that duty has not been paid by way of fraud or suppression of facts with intention to evade payment of duty. The case has been ....
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....ned in various dictionaries unless of course the context in which it has been used indicates otherwise. A perusal of the proviso indicates that it has been used in company of such strong words as fraud, collusion or wilful default. In fact it is the mildest expression used in the proviso. Yet the surroundings in which it has been used it has to be construed strictly. It does not mean any omission. The act must be deliberate. In taxation, it can have only one meaning that the correct information was not disclosed deliberately to escape from payment of duty. Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression." [Emphasis supplied] ............ ............ 17. In fact, the Act contemplates a positive action which betrays a negative intention of willful default. The same was held by Easland Combines, Coimbatore v. The Collector of Central Excise, Coimbatore - (2003) 3 SCC 410 = 2003 (152) E.L.T. 39 (S.C.) wherein this Court held :- "31. It is settled law that for invoking the extended period of limitation duty should not have been paid, sh....