TaxTMI 
TaxTMI 
TaxTMI 
2023 (1) TMI 53
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....h was pleaded in the Memorandum of Appeal and also in the written synopsis filed by the appellant, in the alternative, that if the appellant was not entitled to exemption under the notification then CENVAT credit of the duty tax paid on inputs, input services and capital goods used in or in relation to the manufacture of final products would be available to the appellant but this submission was also not considered by the Tribunal in the final order. 3. Shri B.L. Narasimhan, assisted by Shri Dhruv Tiwari, learned counsel appeared for the applicant and placed the application as also the Memorandum of Appeal and the written synopsis submitted at the time of hearing of the appeal to support the pleas raised in the application that the inadvertent mistakes should be rectified. 4. Shri Sanjay Kumar Singh, learned authorized representative appearing for the Department has not disputed that the two submissions were advanced during the hearing of appeal but he has submitted that the extended period of limitation was correctly invoked in the facts and circumstances of the case and that the appellant was not entitled to avail CENVAT credits. 5. It ....
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....ied. It was pointed out that the error apparent from the record should be so manifest and clear that no Court would permit it to remain on record. It should be pertinent and self-evident and not require any elaborate discussion of evidence or argument. It was also observed that rectification of an order stems from the fundamental principle that justice is above all and it is to be exercised to remove the error and to disturb the finality. Paragraphs 37, 40 and 45 of the judgment are reproduced below : "37. In our judgment, therefore, a patent, manifest and selfevident error which does not require elaborate discussion of evidence or argument to establish it, can be said to be an error apparent on the face of the record and can be corrected while exercising certiorari jurisdiction. An error cannot be said to be apparent on the face of the record if one has to travel beyond the record to see whether the judgment is correct or not. An error apparent on the face of the record means an error which strikes on mere looking and does not need longdrawn-out process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matter t....
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....how cause why he should not pay the amount specified in the notice;" 12. Thus, a notice can be issued by the central excise officer within two years from the relevant date. However, if the notice is not issued within two years from the relevant date, the central excise officer can still issue a notice within five years from the relevant date provided the conditions set out in sub-section (4) of section 11A of the Excise Act are satisfied. Section 11A (4) is reproduced below:- " Section 11A(4) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by the reason of- (a) fraud; or (b) collusion; or (c) any wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by any person chargeable with the duty, the Central Excise Officer shall, within five years from the relevant date, serve notice on such person requiring him to show cause why he should not pay the amount specified in the notice along with interest payable thereon under section 11AA and a penalty equivalent to the duty specified in t....
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....e parties, the omission by one to do what he might have done and not that he must have done, would not render it suppression. It is settled law that mere failure to declare does not amount to wilful suppression. There must be some positive act from the side of the assessee to find willful suppression. Therefore, in view of our findings made hereinabove that there was no deliberate intention on the part of the appellant not to disclose the correct information or to evade payment of duty, it was not open to the Central Excise Officer to proceed to recover duties in the manner indicated in the proviso to Section 11-A of the Act. We are, therefore, of the firm opinion that where facts were known to both the parties, as in the instant case, it was 7 (2005) 7 SCC 749 11 E/52953/2018 not open to CEGAT to come to a conclusion that the appellant was guilty of "suppression of facts." (emphasis supplied) 16. In Easland Combines, Coimbatore vs. Collector of Central Excise, Coimbatore [(2003) 3 SCC 410] the Supreme Court observed that for invoking the extended period of limitation, duty should not have been paid because of fraud, collusion, wilful statement, suppression of fa....
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....parties, omission by one party to do what he might have done would not render it suppression. When the Revenue invokes the extended period of limitation under Section 11A the burden is cast upon it to prove suppression of fact. An incorrect statement cannot be equated with a wilful misstatement. The latter implies making of an incorrect statement with knowledge that the statement was not correct." (emphasis supplied) 19. It is, therefore, clear that the suppression of facts should be deliberate and in taxation laws it can have only one meaning, namely that the correct information was not disclosed deliberately to escape payment of duty. 20. To ascertain whether the conditions stipulated in sub-section (4) of section 11A of the Excise Act were satisfied and whether the adjudicating authority was justified in holding that it was correctly invoked, it would be necessary to reproduce the relevant portion of the show cause notice containing allegations relating to invocation of the extended period of limitation and they are as follows :- " 2.1. Whereas, on preliminary scrutiny of ER-3/ER-1 Returns filed by the assessee for the period from January, 2014 to June, 20....
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....ltural fields would be exempted from payments of Central Excise duty in terms of the said notification. The appellant also pointed out that it was regularly filing ER-III/ER-I returns wherein it had declared the following facts regarding distribution of goods, exemption notification number with serial numbers and duty payable. The said chart, which is a part of the reply to the show cause notice, is reproduced below:- Month/ Quarter CETH Description of goods Tariff Notification Sr. No. in Tariff Notification Duty Payable January- March,14 73089090 Solar Structure 12/2012-CE 332 0 April- June,14 73089090 Solar Structure 12/2012-CE 332 0 July- September,14 73089090 Structures (Excluding prefabricated buildings of Heading 9406 and parts of structures (for example, bridges and bridge sections, lock gates, towers, lattice masts, roofs, roofing frame work, doors and windows and their frames and thresholds for Doo 12/2012-CE 332 0 October-December,14 73089090 Structures (Excluding prefabricated buildings of Heading 9406 and parts of structures (for example, bridges and bridge sections, lock gates, towers, lattice masts, roofs, roofing frame work, do....
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....ng structures used for Solar Power Generating System 26/2012-CE 332 0 February, 17 73089040 Solar Mounting structures used for Solar Power Generating System 26/2012-CE 332 0 March,17 73089040 Solar Mounting structures used for Solar Power Generating System 26/2012-CE 332 0 April,17 73089040 Solar Mounting structures used for Solar Power Generating System 26/2012-CE 332 0 May,17 73089040 Solar Mounting structures used for Solar Power Generating System 12/2012-CE 332 0 June,17 73089040 Solar Mounting structures used for Solar Power Generating System 12/2012-CE 332 0 22. It is for this reason that the appellant contended in the reply that the Department was aware that appellant, which was manufacturing module mounting structure used for solar power generating system, had availed exemption under notification dated 17.03.2012 at S. No. 332 and cleared the goods at NIL rate of duty and so there was no suppression. The appellant also pointed out that suppression has to be with an intent to evade payment of duty. 23. The Commissioner, in the impugn....
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....t was the duty of the proper officer to have scrutinized the correctness of the duty assessed by the assessee and if necessary call for such records and documents from the assessee, but that was not done. It is, therefore, not possible to accept the contention of the learned authorized representative appearing for the Department that the appellant should have filed a proper assessment return under rule 6 of the Rules. 25. Departmental instructions to officers also emphasise upon the duty of officers to scrutinize the returns. The instructions issued by the Central Board of Excise & Customs [CBEC] on December 24, 2008 deal with "duties, functions and responsibilities of Range Officers and Sector Officers". It has a table enumerating the duties, functions and responsibilities and the relevant portion of the table is reproduced below: "LIST OF DUTIES, FUNCTIONS AND RESPO NSIBILITES OF RANGE OFFICER AND SECTOR OFFICER SCRUTINY OF RETURNS S. No. Subject Sector officer's duties Range officer's duties 2.1 Scrutiny of ER-1/ER- 2/ER-3 Returns To ensure that these returns are entered in database. To carry out preliminary scrutiny of ER-1/ER-2/ER....
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....assessment. 2.4 The Additional/Joint Commissioner of Central Excise will scrutinize the returns of the units which pay duty of Rs. 5 crores or more from PLA per annum every six months. They shall requisition all connected documents including invoices and the records and scrutinize the correctness of assessment." (emphasis supplied) 27. It is thus evident that not only do the 2002 Rules mandate officers to scrutinise the Returns to verify the correctness of self assessment and empower the officers to call for documents and records for the purpose, Instructions issued by the department also specifically require officers at various levels to do so. 28. Thus, the finding in the order of the Commissioner that the applicant had deliberately filed incorrect returns as a result of which the extended period of limitation could be invoked cannot be sustained. The Department was aware of the material facts, more particularly when the availment of exemption benefit under notification dated 17.03.2012, had been categorically declared by the applicant in the excise returns. 29. Learned counsel for the applicant also submitted that the fact of availment of exem....