2024 (9) TMI 1753

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.... or suppression of fact. 2. It is submitted by the learned counsel for the petitioner that unless and until, the impugned order finds that there is fraud, wilful misstatement or suppression of fact to levy taxes, the impugned order of assessment invoking extended period of limitation under Section 74 of the TNGST Act is without jurisdiction. 3. To the contrary, it is submitted by the learned Additional Government Pleader for the respondent that the order in question is an appealable order and in view of existence of an efficacious alternate remedy by way of appeal, the Writ Petition ought not to be entertained. 4. Considering the submissions made on both sides and perused the material on record. 5. While this Court is conscious ....

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....riod would be invoked only where tax has not been paid or short paid or erroneously refunded or where input tax credit has been wrongly availed or utilised by reason of fraud, or any wilful misstatement or suppression of facts to evade tax. The existence of the above ingredients is a jurisdictional fact/condition precedent for invoking extending period of limitation under Section 74 of the Act. It is clear that existence of "jurisdictional fact" is sine qua non for the exercise of power. If the jurisdictional fact exists, the authority can proceed with the case and take an appropriate decision in accordance with law. It leaves no room for any doubt that to invoke the extended period, the Assessing Officer ought to show/demonstrate the exist....

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....n in regard to waste or by-product) an intention to evade the payment of duty." b) CCE v. Pepsi Foods Ltd., (2011) 1 SCC 601: ''25. The aforesaid dictum of Lord Reid has been followed by this Court also. A reference in this connection may be made to Union of India v. Rajasthan Spg. & Wvg. Mills [(2009) 13 SCC 448 : (2009) 238 ELT 3] . This Court considering Section 11-AC of the Act held in ELT para 19 at p. 12 of the Report as follows: (SCC p. 459, para 29) "29. From the aforesaid discussion it is clear that penalty under Section 11-AC, as the word suggests, is punishment for an act of deliberate deception by the assessee with the intent to evade duty by adopting any of the means mentioned in the section."....