2023 (3) TMI 1067

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.... necessary verification. 13. Finally coming to the issue of Show cause notice being barred by limitation, we find that similar issue has already been adjudicated by the Commissioner vide his Order-in-Original No. 13/Commr/CEX/ADJ/STN/2010 dated 29.07.2010 wherein similar issue was the subject matter of remand. Apart from the above, we take note of the fact that the appellant unit have been audited every year since 01.01.2008. We find that following audits had taken place during the period of demand: (i) CE Audit Conducted upto October, 2008 on 18.12.08 (ii) CE Audit Conducted upto March, 2009 on 7.8.2009 (iii) CE Audit Conducted upto June, 2010 on 26.8.2010 (iv) CERA Audit Conducted upto March, 2010 on 26.11.2010 (v) CE Audit Conducted upto December, 2011 on 7.1.2012 14. Thus prima facie, we find that there is a substance in the claim made by the advocate that the extended period of demand under section 11 A of the Central Excise Act, 1944 is not invokable in the facts and circumstances of this case. However, since the entire matter is being remanded back, we expect that the learned adjudicating authority will examine t....

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.... 7. We have considered the submissions on both sides and perused the records. There is no dispute regarding the merits of the case and the calculation of duty. Therefore, insofar as the directions of this Tribunal in the Final Order dated 29.7.2019 are concerned, they have been fully complied with. The only question which remains is the invocation of extended period of limitation which was also required to be examined by the Commissioner. The Commissioner recorded his findings on this issue in paragraph 19 of the impugned order as follows: "I observe that the Noticee in their defense reply have contended that there cannot be suppression clause invocable for demand of duty as they have not suppressed the facts with intent to evade payment of excise duty. In support of their defence, they placed reliance some judicial pronouncements. Here, I find that the suppression of facts with intent to evade duty is clearly evident as all these material facts came to the knowledge of the Department only after scrutiny of records. Furthermore, the Noticee has not provided any evidence to show that they had provided any information about the categories of buyers to whom they had cleared t....

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....le on removal (Rule 4). The assessee has to self- assess (Rule 6) the duty and pay it by the fifth day of the following month (Rule 8) and file Returns (Rule 12). The officers have to scrutinize the returns and can, for the purpose, call for documents and records which the assessee is bound to produce. The relevant Rules are below: Rule 4. Duty payable on removal.- (1) Every person who produces or manufactures any excisable goods, or who stores such goods in a warehouse, shall pay the duty leviable on such goods in the manner provided in rule 8 or under any other law, and no excisable goods, on which any duty is payable, shall be removed without payment of duty from any place, where they are produced or manufactured, or from a warehouse, unless otherwise provided Xxxxxxx Rule 6. Assessment of duty.- The assessee shall himself assess the duty payable on any excisable goods: Provided that in case of cigarettes, the Superintendent or Inspector of Central Excise shall assess the duty payable before removal by the assessee. Rule 8. Manner of payment. - (1) The duty on the goods removed from the factory or the wareho....

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....ised that Audit is only an additional check and the primary check against any incorrect selfassessment rests squarely on the officer who is mandated to scrutinise the returns. 12. In other words, the officer is mandated under the Rules to do what the audit may do much later. If the officer, who is an expert in taxation scrutinises the returns as he is mandated to do and calls for any records as he is authorised to call for, any mistakes which may be pointed out by the audit would come to light and an SCN could have been issued under section 11A within the normal period of limitation. Therefore, even if no audit is conducted during the relevant period and some duty escapes assessment, extended period of limitation cannot be invoked for that reason. The check against incorrect self assessment is the scrutiny of the return by the officer and audit is only the second check. Therefore, while the fact that audit checks only some selected documents and not every document as held in the impugned order is correct, this cannot be a ground to invoke extended period of limitation. Unlike audit, the officer receiving the ER-1 returns is required to scrutinise the returns and is empowered to ....