TaxTMI 
TaxTMI 
TaxTMI 
2022 (9) TMI 1014
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....25th September 2020 passed by the Customs Excise and Service Tax Appellate Tribunal, Mumbai ('CESTAT'). 3. The following questions of law have been proposed for our consideration : (i) Whether in the facts and circumstances of the case, CESTAT was right in setting aside the demand for extended period of limitation, despite holding the case on merits in favour of the Appellant-department? (ii) Whether the CESTAT, being last fact finding authority, has passed unreasoned and non-speaking order? 4. Briefly stated the material facts are as under : (i) The respondent-M/s. Signet Chemicals Pvt. Ltd., an importer, had imported the good namely "Neutral Pellets" during the period March 2012 to February 2015, classifying the same under Custom ....
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.... controversy. 5. The issue in Appeal No. 85493 of 2019 related to the claim of the respondent that the demand in the said appeal was barred by limitation. The CESTAT allowed the appeal filed by the respondent and set aside the demand which had been conformed in the order impugned before it by invoking the extended period of limitation. What was held by the CESTAT is reproduced hereunder :- "17. The next question relates to the claim of the appellant that the demand in the case of Appeal No. C/85493/2019 is barred by limitation. The appellant during the period March, 2012 to February, 2015, admittedly from time to time filed Bills of Entry declaring their product under CTH 17029090. They have submitted that the product in question had been....
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....allegation of suppression of facts or mis-declaration solely on the basis that the correct classification which according to the Department would fall under different Tariff Heading i.e. 1701 attracting higher rate of duty during the period under the dispute cannot be sustained. This is the principle of law laid down by the Tribunal and Courts in a series of cases. Consequently, the demand confirmed in the impugned Order invoking extended period relating to Appeal No. C/85493/2029 is set aside on the ground of limitation." 6. Learned counsel for the appellant urged that the view expressed by the CESTAT was erroneous and perverse in law and was, therefore, not sustainable. It was urged that the goods which were imported by the respondent ha....
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....ny Vs. Collector of Central Excise, Bombay 1995 Supp (3) SCC 462 considered the proviso to section 11-A of the Central Excise Act, 1944, and held : "............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....
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.... challenged before us or before the Tribunal itself as being based on no evidence." 11. In Cosmic Dye Chemical Vs. Collector of Central Excise, Bombay (1995) 6 SCC 117, it was held : "6 Now so far as fraud and collusion are concerned, it is evident that the requisite intent, i.e., intent to evade duty is built into these very words. So far as misstatement or suppression of facts are concerned, they are clearly qualified by the word "willful" preceding the words "misstatement or suppression of facts" which means with intent to evade duty. The next set of words "contravention of any of the provisions of this Act or rules" are again qualified by the immediately following words "with intent to evade payment of duty". It is, therefore, not co....
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....excise duty and hence it may not have been included in their classification list. But that per se cannot go to prove that there was the intention to evade payment of duty or that the assessee was guilty of fraud, collusion, misconduct or suppression to attract the proviso to section 11-a(1) of the Act. There is considerable force in this contention....." 14. The principle laid down in the judgments Supra was followed in Uniworth Textiles Limited Vs. Commissioner of Central Excise, Raipur (2013) 9 SCC 753 which essentially is that with a view to invoke the extended period of limitation, there ought to be a positive act and not merely a failure to pay duty which is not on account of any fraud, collusion or willful misstatement or suppression....