Custom, Excise & Service Tax Tribunal
Aglowmed Ltd vs Commissioner, Cgst-Dehradun on 17 February, 2025
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH- COURT NO. I
Excise Appeal No. 51902 of 2021
(Arising out of Order-in-Original No. 09/COMMR./DDN/2021 dated 13.09.2021 passed
by the Commissioner Central Goods & Service Tax, Commissionerate, Dehradun.)
M/s. Aglowmed Ltd. ...Appellant
Plot No. 50 & 51, Raipur, Bhagwanpur,
Distt. Haridwar (Uttarakhand)
versus
Commissioner Central Goods ...Respondent
and Service Tax, Dehradun
APPEARANCE:
Ms. Priyanka Goel, Advocate for the Appellant
Shri Rakesh Agarwal, Authorised Representative of the Department
CORAM:
HON‟BLE MR. JUSTICE DILIP GUPTA, PRESIDENT
HON‟BLE MR. P. V. SUBBA RAO, MEMBER (TECHNICAL)
Date of Hearing: 11.12.2024
Date of Decision: 17.02.2025
FINAL ORDER NO. 50310/2025
JUSTICE DILIP GUPTA:
This appeal that has been filed by M/s. Aglowmed Ltd.1 seeks the
quashing of the order dated 13.09.2021 passed by the Commissioner,
Central Goods and Service Tax Commissionerate, Dehradun2 denying
the benefit of central excise duty exemption under Notification No.
01/2011-CE dated 01.03.2011, as amended by Notification dated
17.03.20123 to the appellant and confirming the demand of central
excise duty amounting to Rs. 7,50,33,780/- with interest and penalty.
1. the appellant
2. the Commissioner
3. the Exemption Notification
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2. The appellant is engaged in manufacture of allopathic medicines
falling under Chapter 30 and food products falling under Chapter 21 of
the Central Excise Tariff Act, 19854. The appellant obtained the
necessary licences to manufacture such medicines from the Drug
Licence-cum- Controlling Authority (Manufacturing).
3. The appellant claims that it had been availing the benefit of Area
Based Exemption granted under a Notification dated 10.06.2003 in
respect of all the excisable goods manufactured in the factory with
effect from 25.12.2004. Since the exemption from payment of excise
duty was granted for a period of ten years, the appellant opted to pay
excise duty on the goods manufactured by it with effect from
01.04.2014 and intimated this fact to the jurisdictional Assistant
Commissioner of Central Excise by a letter dated 07.04.2014. The
appellant also claims that the description of excisable goods
manufactured remained the same during the period the appellant
availed the benefit of the Notification dated 10.06.2003 and the period
during which the appellant availed the benefit of Exemption Notification
dated 01.03.2011.
4. An Excise Audit of the appellant was conducted by the officers of
Central Excise in the month of March, 2016 covering period from April,
2011 to March, 2015. The appellant claims to have provided the
following documents to the audit team:
01. Central Excise Registration Certificate
02. Service Tax Registration Certificate
03. Excise Returns
04. Income Tax Returns
4. the Tariff Act
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05. Balance Sheets, Directors reports, Profit & Loss
Accounts and Annual return
06. Cost Audit Report
07. Detailed Product-wise list showing Assessable Value,
Duty paid, CENVAT Credit availed and Rate of Duty
against each product for Financial Years 2012-13,
2013-14 & 2014-15.
5. According to the appellant, the Auditors gave a Fair Audit Report
to this audit, after examining the aforesaid documents and cross-
checking it with the packed products.
6. Thereafter, CERA Audit of the appellant was conducted by the
Office of Director of Audit (Central), Lucknow on 19.04.2018 to
08.05.2018 for the period from April 2014 to June 2017. The appellant
claims that the following documents were provided to the Audit Team:
01. Central Excise Registration Certificate
02. Service Tax registration Certificate
03. Excise Returns
04. Income Tax returns
05. Balance Sheets, Directors reports, Profit & Loss
Accounts and Annual return
06. Cost Audit Report
7. According to the appellant, a Fair Audit Report was given by the
Audit Team to the appellant in respect of this audit.
8. Another Excise Audit of the appellant was conducted in November
2019 for the period from April 2015 to June 2017. The appellant claims
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to have provided the following documents to the Audit team on
15.11.2019.
01. Copies of balance sheet For F.Y‟.s 2015-2016, 2016-
2017 and 2017-2018
02. Excise Return ER_1 From April 2015 to June 2017
03. Service Tax Return ST_3 From April 2015 to June 2017
04. Income Tax Return For F.Y.‟s 2015-2016, 2016-
2017 and 2017-2018
05. Annual Return MGT_07 For F.Y.‟s 2015-2016, 2016-
2017 and 2017-2018
06. Financial Statement AOC_04 For F.Y.‟s 2015-2016, 2016-
2017 and 2017-2018
07. Last audit report UPTO 2014-2015
08. Authority Letter Mr. Bhaskar Mishra
09. Duty Paid More than Rs. 1 Cr. Per year.
9. This appeal arises out of the last Excise Audit conducted for the
period from April, 2015 to June, 2017. It was observed by the Audit
Team that the appellant was not eligible for availing the benefit of the
Exemption Notification and so the appellant had short paid excise duty.
10. Thereafter, a show cause notice dated 26.06.2020 was issued to
the appellant. The relevant portion of the show cause notice is
reproduced below:
"2. Whereas, Audit of the records of party was
conducted by the officers of Central Goods & Service
Tax Audit Commissionerate, Dehradun for the period
from 01.04.2015 to 30.06.2017. During the course
of audit, it has been observed that during the audit
period, the party was manufacturing and clearing
various medicaments. xxxxxxxxxxx by availing the
benefit of Notification No. 01/2011-CE dated
01.03.2011 as amended vide notification No.
16/2012-CE dated 17.03.2012 without availing
CENVAT credit.
7. Whereas it appears that the intention of
the party was to misuse the exemption under
Notification No. 01/2011-CE dated 01.03.2011 as
amended to avoid payment of higher rate of duty
on medicaments falling under Chapter heading
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30.04 and food supplements falling under Sub
heading No. 21069099 manufactured by them
xxxxxx"
(emphasis supplied)
11. The show cause notice also invoked the extended period of
limitation under section 11A(4) of the Central Excise Act, 19445 and the
relevant portions of the show cause notice dealing with this issue are
reproduced below:
"9.1 Whereas, in the era of self-assessment and
self-removal, the party was required to assess their
duty liability correctly and to discharge the same in
the prescribed manner. In the instant case, the
party appears to have wrongly availed benefit of
exemption under Notification No. 01/2011-CE dated
01.03.2011 as amended deliberately with the sole
intent to evade payment of appropriate Central
Excise duty willfully with mala-fide intent and clear
their finished goods without payment of appropriate
duty on the tariff rate by claiming exemption under
the said notification which was otherwise not
available to them. Therefore, as the duty of excise has
not been properly paid by the party by the reason of
willful contravention of the Rule 4 and Rule 6 of the
Central Excise Rules, 2002 and wrong availment of
Notification No. 01/2011-CE dated 01.03.2011 as
amended with the intent to evade the payment of
duty, the extended period under Section 11A(4) of
the Act seems to be applicable for raising demand
by invoking extended period of limitations.
9.2 Whereas, Section 11A(4) of the Central Excise,
1944 provides the provisions of extended period of five
years from the relevant date to issue a notice where any
duty of excise has not been levied or paid or has been
short-levied or shor-paid or erroneously refunded, by the
reason of-
(a) fraud; or
5. the Central Excise Act
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(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.
9.3 In the instant case, it appears that the party
has contravened the provisions of Notification No.
01/2011-CE dated 01.03.2011 as amended issued
under Section 5A of the Central Excise Act, 1944 and Rule
4 and Rule 6 of the Central Excise Rules, 2002 with sole
intent to evade payment of Central Excise duty
payable by them on their finished goods namely
Allopathic medicines falling under Chapter 30 and
Food/Health Supplements falling under Sub heading No.
21069099, as discussed supra. Therefore, Central
Excise duty amounting to Rs. 7,50,33,780/- (Rs.
4,99,02,990/- + Rs. 2,51,30,790/-) short paid by the
party against the clearance of Allopathic medicines falling
under Chapter 30 and Food/Health Supplements falling
under Sub heading No. 21069099 appears to be
recoverable from them under the provisions of
Section 11A(4) of the Central Excise Act, 1944 by
invoking extended period of limitations along with
interest under Section 11AA of the Act and a penalty
under Rule 25 of the Central Excise Rules, 2002 read
with Section 11AC of the Central Excise Act, 1944."
(emphasis supplied)
12. The show cause notice, therefore, called upon the appellant to
show cause as to why:
"(i) The exemption under Notification No. 01/2011-CE
dated 01.03.2011 as amended should not be denied
to them on the goods manufactured and cleared
during the period from 01.04.2015 to 30.06.2017.
(ii) The differential Central Excise duty amounting to
Rs.7,50,33,780/- (Rupees Seven crore, Fifty lakhs,
Thirty three thousand, Seven hundred and eighty
only) should not be recovered from them under the
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provisions of Section 11A(4) of the Central Excise
Act, 1944 along with interest payable under Section
11AA of the Act ibid.
(iii) Penalty should not be imposed upon them under
Section 11AC of the Central Excise Act, 1944 read
with Rule 25 of the Central Excise Rules, 2002 for
contravention of provisions of Notification No.
01/2011-CE dated 01.03.2011 as amended and Rule
4, 6 and 8 of the Central Excise Rules, 2002 with
intent to evade the payment of duty."
13. The appellant filed a reply dated 11.08.2020 to the aforesaid show
cause notice. Apart from contesting the demand on merits, the
appellant also pointed out that the extended period of limitation
contemplated under section 11A(4) of the Central Excise Act could not
have been invoked for the reason that not only three Audits had been
conducted by the department in which all the required information was
furnished to the Audit Team by the appellant, but also for the reason
that the appellant had been regularly filing Returns in which the
required information was provided. The appellant, therefore, contended
that it could not be alleged by the department that the appellant had
suppressed facts, much less with an intention to evade to avoid
payment of service tax. The relevant portion of the reply furnished by
the appellant in respect of the extended period of limitation is
reproduced below:
"In keeping view of above facts it is clearly evident
that there is no any Fraud, Collusions, any willful
misstatement, suppression of facts and
Contravention of any of the provisions of this Act or
of the rules made there under with intent to evade
payment of duty was involved at our end hence
raised the demand u/s 11A(4) cannot be applicable
as the Extended period is not applicable in our case.
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Since 2004, we acted with Department in fair and
transparent manner and applied Notification No.
01/2011 in bona fide and genuine belief and this
view were substantiated from time to time by
Department and it's officers as is visible from
various actions, decisions and conclusions of the
Department Officers as shown above hence Section
11A(4) can not be invoked in our case.
We were fully transparent with Excise Department as we
never had a will or intention to conceal any information
from Department and Department were informed of and
well in possession of information about anything done in
our Plant.
As we utilized this Notification No. 01/2011 in respect of
our allopathic products and food products in bona fide
genuine and honest belief without intention of evasion of
duty and with consistent and transparent intimation to
relevant Excise Officers, invocation of Sec 11 A (4) is
unjustified and against the basic intention of law
(the Central Excise Act 1944) and So this SCN is
Time Barred."
(emphasis supplied)
14. The Commissioner, however, did not accept the contentions
advanced by the appellant, both on merits and on the extended period
of limitation.
15. On merits, the Commissioner observed as follows:
"Supplements are not 'FOOD' as held above, although
they are packaged and ready for consumption. Obviously,
a tablet or syrup cannot be eaten in the sense of food
being eaten. They are to be swallowed or gulped down the
throat. The party has tried to extrapolate the simple literal
wording of the notification to wrongfully claim the benefit
of the Notification No. 01/2011- CE dated 01.03.2011, as
amended.
23. In view of the above facts and discussion, I hold
that the benefit of the Notification No. 01/2011- CE dated
01.03.2011, as amended, is not applicable and available
on the 'Food/ Health Supplements' falling under Chapter
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Sub Heading 21069099 of the First Schedule to the
Central Excise Tariff Act, 1985, being manufactured and
cleared by the party."
16. On the extended period of limitation, the Commissioner observed
as follows:
"25. xxxxxxxxx.
The party has contended that on 25.04.2014 they had
intimated the department about their intention of opting
to avail the benefit of Notification No. 01/2011-CE dated
01.03.2011, consequent upon withdrawal of exemption
Notification No. 49/2003-CE dated 01.03.2011 on
31.03.2014 and that they had been manufacturing same
excisable goods i.e. prior to 31.03.2014 and after
01.04.2014. They also contended that they had been
audited (EA-2000) by the department for the period
04/2011 to 03/2015 and later on by the officers of
C & AG (CERA) for the period 04/2014 to 06/2017,
but no objection was raised by either of them
although they had been manufacturing same
products and benefits of the notification was being
availed for the said period also. They also contended
that their ER-1 contained name, description of the
excisable goods cleared and chapter sub heading
number, which were also scrutinized and accepted
by the department and even the sample of
packaging material was also submitted, when asked
for by the department and in view of the same the
party averred that extended period cannot be
invoked for demanding the duty as the fact of
availing of the benefits of the above_said
notification was in the knowledge of the
department.
26. Thus, the main argument of the party has been
that since it has been intimating the department from time
to time about the fact of its availing the exemption
notification, either through the periodic returns being filed
or the fact that they were audited, therefore the extended
period cannot be invoked, since as per them, the
department was well aware of the fact that they are taking
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exemption. This argument is incorrect and misplaced,
because a mere intimation in the form of the said
information being incorporated in the period returns
does not mean any kind of approval or validation by
the department. In fact, the law is premised on trust
in the trade that has been reposed by way of self-
declaration mechanism on part of the party. In this
faith and trust based mechanism and corresponding legal
provisions, the legislative intent clearly expects the trade
to rightfully declare the relevant information and thereby,
pay the taxes correctly themselves. This is in contrast
to the system of tax administration and
corresponding legislative provisions that were in
prevalence before in an era which was also known as
the era of physical control, wherein, before clearance of
goods was undertaken, there was a presence of tax
inspectors at the factory premises checking and
supervising the clearance of goods. Likewise, when
any new product was manufactured by a party, the party
was supposed to file a classification list and also a
valuation list before the departmental designated
authority. Only after approval by the said authority, could
the manufacturer clear the goods under that classification
heading and with that valuation. Obviously, in this kind of
a scenario if the department did not agree with the
classification as proposed by the manufacturer or with the
availment of the exemption notification as proposed by
the manufacturer, it would have been incumbent and
mandatory on part of the department to point out the
error and if the said error or the correction would not be
pointed out by the departmental authority, it would be
logical for the party to argue that the said information was
very well in the knowledge of the department and
therefore, the extended period cannot be invoked.
Whereas, in the tax environment pertaining to the
period in question, this system of physical control
has long become obsolete and the current system is
completely a trust driven tax collection mechanism."
(emphasis supplied)
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17. The decisions relied upon by the appellant to contend that the
extended period of limitation could not have been invoked were not
accepted for the following reasons:
"33. Thus, in all these case laws, the matter was not
only already before the Department, but the same had
been duly considered by the Department in some form or
the other - either by way of a stipulated validation /
approval required or by way of a previous notice that had
been issued, which is not the case in the current
proceedings. Further, I find that in all the case laws cited
by the party, the question of mens rea was not before the
Hon'ble Courts, as in the instant case it is proved beyond
doubt that there was a deliberate intent to evade central
excise duty by the party."
18. The Commissioner ultimately held:
"41. In the instant case, I find that the party was
well aware that they did not fulfill the substantial
condition mandated therein, but deliberately availed
the benefits of the Notification No. 01/2011- CE
dated 01.03.2011, as amended, fully knowing that
the products manufactured by them are not the
ones mentioned in the said notification and in the
process, paid lower central excise duty with the
intent to deny the legitimate right of the
government to charge and collect its rightful duty.
Thus, I find that the party's act of clearing products
on reduced/lower rate of duty is intentional and not
accidental.
42. In view of the above facts, I am of the clear
view that the party deliberately cleared their
products under Notification No. 01/2011- CE dated
01.03.2011, as amended knowing full well that the
products manufactured by them are not covered under the
ambit of the said notification and in the process, has
contravened the provisions of the Central Excise Tariff Act,
1985, Central Excise Act, 1944 and the rules made there
under, with intent to evade payment of duty and all
the ingredients present establish the mens rea of
the party. Thus, the intent to evade payment of duty
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by the party is clearly established as a deliberate
and apparent and hence I hold that the mens rea to
evade central excise duty to deny the legitimate
right of the government to charge and collect its
rightful duty is proved and hence the extended
period of limitation is invokable."
(emphasis supplied)
19. It is this order dated 13.09.2021 passed by the Commissioner that
has been assailed in this appeal.
20. Ms. Priyanka Goel, learned counsel for the appellant submitted
that the appellant was entitled to avail the benefit of the Exemption
Notification and denial of the same by the impugned order is unjustified.
Learned counsel also submitted that the entire period of dispute, which
is from 01.04.2015 to 30.06.2017, covered by the show cause notice
dated 26.06.2020 falls under the extended period of limitation provided
for under section 11A(4) of the Central Excise Act, but in view of the
facts and circumstances of the case the extended period of limitation
could not have been invoked. In this connection, learned counsel placed
reliance upon certain decisions to which reference shall be made at the
appropriate stage.
21. Shri Rakesh Agarwal, learned authorized representative appearing
for the department, however, submitted that the appellant was not
entitled to claim the benefit of the Exemption Notification, and in any
view of the matter, the Commissioner was justified in holding that the
extended period of limitation contemplated under section 11A(4) of the
Central Excise Act was correctly invoked. In this connection, learned
authorized representative also placed reliance upon certain decisions to
which a reference shall also be made.
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22. The submissions advanced by learned counsel for the appellant
and the learned authorized representative appearing for the department
have been considered.
23. The issue as to whether the extended period of limitation could
have been invoked in the present case needs to be first examined
because if this issue is decided in favour of the appellant, it may not be
necessary to examine whether the appellant was entitled to avail the
benefit of the Exemption Notification.
24. The show cause notice was issued to the appellant on 26.06.2020
for the period from 01.04.2015 to 30.06.2017.
25. Section 11A(1) of the Central Excise Act deals with recovery of
duties not levied or not paid or short-levied or short-paid or erroneously
refunded. Sub-section (1) of section 11A is reproduced below:
"11A(1) Where any duty of excise has not been levied or
paid or has been short-levied or short-paid or erroneously
refunded, for any reason, other than the reason of fraud
or collusion or any wilful mis-statement or suppression of
facts or contravention of any of the provisions of this Act
or of the rules made thereunder with intent to evade
payment of duty,-
(a) the Central Excise Officer shall, within one year
from the relevant date, serve notice on the
person chargeable with the duty which has not
been so levied or paid or which has been so
short-levied or short-paid or to whom the
refund has erroneously been made, requiring
him to show cause why he should not pay the
amount specified in the notice;
(b) the person chargeable with duty may, before
service of notice under clause (a), pay on the
basis of,-
(i) his own ascertainment of such duty; or
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(ii) the duty ascertained by the Central
Excise Officer,
the amount of duty along with interest payable thereon
under section 11AA.
26. Section 11A(4) of the Central Excise Act deals with circumstances
under which the extended period of limitation of five years can be
invoked. It is reproduced below:
"Section 11A(4) Where any duty of excise has not been
levied or paid or has been short-levied or shor-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 the notice."
27. It would be seen from a perusal of sub-section (1) of section 11A
of the Central Excise Act that where any duty of excise has not been
levied or paid, for any reason, other than the reason of fraud or
collusion or any wilful mis-statement or suppression of facts or
contravention of any of the provisions of the Central Excise Act or the
Rules made thereunder with intent to evade payment of duty, the
Central Excise Officer, shall within one year from the relevant date,
serve notice on the person chargeable with the duty which has not been
paid. However, sub-section (4) of section 11A of the Central Excise Act
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provides that where any duty of excise has not been levied by reason of
fraud or collusion or any wilful mis-statement or suppression of facts or
contravention of any of the provisions of the Central Excise Act with
intent to evade payment of duty, the Central Excise Officer shall, within
five years from the relevant date, serve notice on the person to show
cause why he should not pay the amount specified in the notice.
28. The reasons broadly given in the show cause notice for invoking
the extended period of limitation are:
(i) In the era of self-assessment an assessee is
required to assess duty liability correctly and to
discharge the same in the prescribed manner;
(ii) The assessee wrongly availed the benefit of
Exemption Notification with the sole intent of
evading payment of Central Excise duty willfully
and with mala fide intent; and
(iii) The provisions of section 11A(4) of the Central
Excise Act would, therefore, be clearly applicable for
invoking the extended period of limitation.
29. The reasons given by the Commissioner for holding that the
extended period of limitation was correctly invoked are:
(i) The contention of the assessee that it had provided
information to the department from time to time
through the periodic returns and when the audit was
conducted is not correct because mere intimation
does not mean "any kind of approval or validation by
the department". Law is premised on trust in the
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trade that has been reposed by way of self-
declaration mechanism on the assessee;
(ii) The decisions relied upon by the assessee are not
applicable as the question of mens rea was not in
issue before the Courts;
(iii) The assessee was aware that it did not fulfill the
substantial condition stipulated in the exemption
notification and, therefore, the clearing of products
on reduced lower rate of duty is intentional and not
accidental; and
(iv) As assessee had a clear intent to evade payment of
duty, the extended period of limitation was correctly
invoked.
30. It has to be remembered that mere suppression of facts is not
enough. There has to be a deliberate attempt to evade payment of
excise duty. The show cause notice must specifically deal with this
aspect and the adjudicating authority is also obliged to examine this
aspect in the light of the facts stated by the assessee in reply to the
show cause notice.
31. The relevant facts have to be examined for considering whether
the provisions of section 11A(4) of the Central Excise Act dealing with
the invocation of the extended period of limitation could have been
invoked.
32. In the present case, as noticed above, all that has been stated in
the show cause notice regarding invocation of the extended period of
limitation is that the appellant wrongly availed the benefit of the
Exemption Notification deliberately with the sole intent to evade
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payment of central excise duty. The Commissioner also held that there
was an intent to evade payment of central excise duty merely because
the benefit of the Exemption Notification was wrongly availed.
33. Mere wrong availment of an Exemption Notification would not lead
to a conclusion that it was with an intent to evade payment of central
excise duty unless the department is able to not only allege but
substantiate that the said suppression was deliberate with an intent to
evade payment of central excise duty.
34. The provisions of section 11A of the Central Excise Act, as it then
stood, came up for interpretation before the Supreme Court in
Pushpam Pharmaceuticals Company vs. Collector of Central
Excise, Bombay6. The Supreme Court observed that the proviso to
section 11A empowers the Department to reopen the proceedings if
levy has been short levied or not levied within six months from the
relevant date but the proviso carves out an exception and permits the
authority to exercise this power within five years from the relevant date
in the circumstances mentioned in the proviso, one of which is
suppression of facts. It is in this context that the Supreme Court
observed that the act must be deliberate to escape payment of duty.
The relevant observations of the Supreme Court are:
"2. ****** The Department invoked extended period
of limitation of five years as according to it the duty
was shortlevied due to suppression of the fact that if
the turnover was clubbed then it exceeded Rupees Five
lakhs.
********
4. A perusal of the proviso indicates that it has been used in company of such strong works as fraud,
6. 1995 (78) E.L.T. 401 (S.C.) 18 E/51902/2021 collusion or willful 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)
35. This decision of the Supreme Court in Pushpam Pharmaceuticals was followed by the Supreme Court in Anand Nishikawa Co. Ltd. vs. Commissioner of Central Excise, Meerut7 and the relevant paragraph is as follows:-
"27. Relying on the aforesaid observations of this Court in the case of Pushpam Pharmaceuticals Co. v. CCE we find that "suppression of facts" can have only one meaning that the correct information was not disclosed deliberately to evade payment of duty. When facts were known to both the 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
7. (2005) 7 SCC 749 19 E/51902/2021 to a conclusion that the appellant was guilty of "suppression of facts."
(emphasis supplied)
36. In Easland Combines, Coimbatore vs. Collector of Central Excise, Coimbatore8 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 fact or contravention of any provision. These ingredients postulate a positive act and, therefore, mere failure to pay duty which is not due to fraud, collusion or wilful misstatement or suppression of facts is not sufficient to attract the extended period of limitation.
37. The aforesaid decisions of the Supreme Court were relied upon by the Supreme Court in Uniworth Textiles Ltd. vs. Commissioner of Central Excise, Raipur9 and the relevant portion of the judgment is reproduced below:
"12. We have heard both sides, Mr. R.P. Batt, learned senior counsel, appearing on behalf of the appellant, and Mr. Mukul Gupta, learned senior counsel appearing on behalf of the Revenue. We are not convinced by the reasoning of the Tribunal. The conclusion that mere non-payment of duties is equivalent to collusion or willful misstatement or suppression of facts is, in our opinion, untenable. If that were to be true, we fail to understand which form of nonpayment would amount to ordinary default? Construing mere non-payment as any of the three categories contemplated by the proviso would leave no situation for which, a limitation period of six months may apply. In our opinion, the main body of the Section, in fact, contemplates ordinary default in payment of duties and leaves cases of collusion or wilful misstatement or suppression of facts, a smaller, specific and more serious niche, to the
8. (2003) 3 SCC 410
9. 2013 (288) E.L.T. 161 (S.C.) 20 E/51902/2021 proviso. Therefore, something more must be shown to construe the acts of the appellant as fit for the applicability of the proviso."
(emphasis supplied)
38. The Supreme Court in Continental Foundation Joint Venture vs. Commissioner of Central Excise, Chandigarh10 also observed in connection with section 11A of the Central Excise Act, that suppression means failure to disclose full information with intention to evade payment of duty and the observations are as follows:-
"10. The expression "suppression" has been used in the proviso to Section 11A of the Act accompanied by very strong words as "fraud‟ or "collusion" and, therefore, has to be construed strictly. Mere omission to give correct information is not suppression of facts unless it was deliberate to stop the payment of duty. Suppression means failure to disclose full information with the intent to evade payment of duty. When the facts are known to both the 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)
39. The Delhi High Court in Bharat Hotels Limited vs. Commissioner of Central Excise (Adjudication)11 also examined the issue relating to the extended period of limitation under the proviso to section 73 (1) of the Finance Act, 199412 and held as follows:
"27. Therefore, it is evident that failure to pay tax is not a justification for imposition of penalty. Also, the
10. 2007 (216) E.L.T. 177 (S.C.)
11. 2018 (12) GSTL 368 (Del.)
12. the Finance Act 21 E/51902/2021 word "suppression" in the proviso to Section 11A(1) of the Excise Act has to be read in the context of other words in the proviso, i.e. "fraud, collusion, wilful misstatement". As explained in Uniworth (supra), "misstatement or suppression of facts" does not mean any omission. It must be deliberate. In other words, there must be deliberate suppression of information for the purpose of evading of payment of duty. It connotes a positive act of the assessee to avoid excise duty.
***** Thus, invocation of the extended limitation period under the proviso to Section 73(1) does not refer to a scenario where there is a mere omission or mere failure to pay duty or take out a license without the presence of such intention."
***** The Revenue has not been able to prove an intention on the part of the Appellant to avoid tax by suppression of mention facts. In fact it is clear that the Appellant did not have any such intention and was acting under a bonafide belief."
(emphasis supplied)
40. The Delhi High Court in Mahanagar Telephone Nigam Ltd. vs. Union of India and others13, also observed as follows:
"28. In terms of the proviso to Section 73(1) of the Act, the extended period of limitation is applicable only in cases where service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, or collusion, or wilful misstatement, or suppression of facts, or contravention of any provisions of the Act or the Rules made thereunder with an intent to evade payment of service tax. However, the impugned show cause notice does not contain any allegation of fraud, collusion, or wilful misstatement on the part of MTNL. The impugned show cause notice alleges that the extended period of limitation is applicable as MTNL
13. W.P. (C) 7542 of 2018 decided on 06.04.2023 22 E/51902/2021 had suppressed the material facts and had contravened the provisions of the Act with an intent to evade service tax. Thus, the main question to be addressed is whether the allegation that MTNL had suppressed material facts for evading its tax liability, is sustainable.
*****
41. In the facts of this case, the impugned show cause notice does not disclose any material that could suggest that MTNL had knowingly and with a deliberate intent to evade the service tax, which it was aware would be leviable, suppressed the fact of receipt of consideration for rendering any taxable service. On the contrary, the statements of the officials of MTNL, relied upon by the respondents, clearly indicate that they were under the belief that the receipt of compensation/financial support from the Government of India was not taxable. Absent any intention to evade tax, which may be evident from any material on record or from the conduct of an assessee, the extended period of limitation under the proviso to Section 73(1) of the Act is not applicable. The facts of the present case indicate that MTNL had made the receipt of compensation public by reflecting it in its final accounts as income. As stated above, merely because MTNL had not declared the receipt of compensation as payment for taxable service does not establish that it had willfully suppressed any material fact. MTNL‟s contention that the receipt is not taxable under the Act is a substantial one. No intent to evade tax can be inferred by non-disclosure of the receipt in the service tax return."
(emphasis supplied)
41. This issue was also examined at length by a Division Bench of the Tribunal in M/s G.D. Goenka Private Limited vs. The Commissioner of Central Goods and Service Tax, Delhi South14. After referring to the provisions of section 73 of the Finance Act, the Bench observed:
14. Service Tax Appeal No. 51787 of 2022 dated 21.08.2023 23 E/51902/2021 "13. There is no other ground on which the extended period of limitation can be invoked. Evidently, fraud, collusion, wilful misstatement and violation of Act or Rules with an intent all have the mens rea built into them and without the mens rea, they cannot be invoked.
Suppression of facts has also been held through a series of judicial pronouncements to mean not mere omission but an act of suppression with an intent. In other words, without an intent being established, extended period of limitation cannot be invoked.
*****
14. In this appeal, the case of the Revenue is that the appellant had wilfully and deliberately suppressed the fact that it had availed ineligible CENVAT credit on input services. The position of the appellant was at the time of self-assessment and, during the adjudication proceedings and is before us that it is entitled to the CENVAT credit. Thus, we find that it is a case of difference of opinion between the appellant and the Revenue. The appellant held a different view about the eligibility of CENVAT credit than the Revenue. Naturally, the appellant self-assessed duty and paid service tax as per its view. Such a self- assessment, cannot, by any stretch of imagination, be termed deliberate and wilful suppression of facts."
(emphasis supplied)
42. 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. The show cause notice issued to the appellant, however, merely mentions that the appellant wrongly availed the benefit of the Exemption Notification with intent to evade payment of central excise duty. It does not elaborate why the appellant intended to evade payment of duty. The Commissioner also held that since the 24 E/51902/2021 appellant did not fulfill the condition stipulated in the Exemption Notification, the clearing of products at a reduced rate of duty is intentional. The reply filed by the appellant has not been appreciated by the Commissioner in its correct perspective. Thus, in the absence of any intent by the appellant to evade payment of service, the extended period of limitation under section 11A(4) of the Central Excise Act could not have been invoked.
43. The contention of the appellant is also that it bona fide believed that it was entitled to avail the benefit of the Exemption Notification and it cannot be said that the belief of the appellant is mala fide merely because it may ultimately be held that the appellant is not entitled to the benefit of the Exemption Notification. This contention deserves to be accepted.
44. In this connection, it may be pertinent to refer to the decision of the Supreme Court in Commissioner of C. Ex. & Customs vs. Reliance Industries Ltd.15. The Supreme Court held that if an assessee bonafide believes that it was correctly discharging duty, then merely because the belief is ultimately found to be wrong by a judgment would not render such a belief of the assessee to be malafide. If a dispute relates to interpretation of legal provisions, it would be totally unjustified to invoke the extended period of limitation. The Supreme Court further held that in any scheme of self-assessment, it is the responsibility of the assessee to determine the liability correctly and this determination is required to be made on the basis of his own judgment and in a bonafide manner. The relevant portion of the judgment is reproduced below:
15. 2023 (385) E.L.T. 481 (S.C.) 25 E/51902/2021 "23. We are in full agreement with the finding of the Tribunal that during the period in dispute it was holding a bona fide belief that it was correctly discharging its duty liability. The mere fact that the belief was ultimately found to be wrong by the judgment of this Court does not render such belief of the assessee a mala fide belief particularly when such a belief was emanating from the view taken by a Division Bench of Tribunal. We note that the issue of valuation involved in this particular matter is indeed one were two plausible views could co-
exist. In such cases of disputes of interpretation of legal provisions, it would be totally unjustified to invoke the extended period of limitation by considering the assessee‟s view to be lacking bona fides. In any scheme of self-assessment it becomes the responsibility of the assessee to determine his liability of duty correctly. This determination is required to be made on the basis of his own judgment and in a bona fide manner.
24. The extent of disclosure that an assessee makes is also linked to his belief as to the requirements of law. xxxxxxxxxxx. On the question of disclosure of facts, as we have already noticed above the assessee had disclosed to the department its pricing policy by giving separate letters. It is also not disputed that the returns which were required to be filed were indeed filed. In these returns, as we noticed earlier there was no separate column for disclosing details of the deemed export clearances. Separate disclosures were required to be made only for exports under bond and not for deemed exports, which are a class of domestic clearances, entitled to certain benefits available otherwise on exports. There was therefore nothing wrong with the assessee‟s action of including the value of deemed exports within the value of domestic clearances."
(emphasis supplied) 26 E/51902/2021
45. Learned authorized representation appearing for the department, however, placed reliance upon a decision of the Supreme Court in Commissioner of Central Excise vs. Urmin Products Pvt. Ltd.16 and in particular to paragraph 42 to contend that the extended period of limitation was correctly invoked. The said paragraph is reproduced below:
"42. It is an admitted fact that till the filing of this letter, the assessee continued to classify the product as „zarda/jarda scented tobacco‟ falling under CET SH 2403 9930. It is for this precise reason, that the adjudicating authority has observed, and rightly so that the letter dated 30.03.2006 had been cleverly drafted and it does not mention in detail the product which they were manufacturing at that material time namely „zarda/jarda scented tobacco‟. Though the classification in the letter shows entry CET SH 2403 9910 („chewing tobacco‟), it would depict a picture as though it is a new product. A plain reading of the letter would not indicate that the author of the said letter intended to reveal any details about the product that is being manufactured. However, the assessee cannot feign ignorance as to the necessity of furnishing such relevant details necessary for determination of payment of duty. The assessee having been in this industry for a long period was well aware of this statutory requirement. Upon a deeper examination of the said letter, the suppression becomes more apparent, namely the nonmentioning of change of the name and classification of the goods which they were currently manufacturing and which they ought to have disclosed.
It is this hiding of the fact and not specifying the details in their letter that led to the issuance of the show cause notice and invocation of Section 11A and Section 11 AC of the CE Act, by the Department. It cannot be ignored that till filing of the letter dated
16. (2023) 11 Centax 270 (S.C.) 27 E/51902/2021 30.03.2006, the assessee itself was classifying the product as „zarda/jarda scented tobacco‟ falling under CET SH 2403 9930 and being a large-scale manufacturer and paying large sums of amount as duty, to contend that it was unaware of the difference between these two products, or to contend that it had classified the product as „zarda/jarda scented tobacco‟ by ignorance, is not a plausible justification on part of the assessee. However, on the issuance of Notification No.2 of 2006 dated 01.03.2006 under which „zarda/jarda scented tobacco‟ was excluded orin other words not included in the said notification, the assessee changed the description of its product from „zarda/jarda scented tobacco‟ to „chewing tobacco‟. The date of communication of the letter dated 30.03.2006 by the assessee also acquires significance in as much as the Notification No.2 of 2006 dated 01.03.2006 were to take effect from 01.04.2006 and just two days before the date of the said Notification No.2 of 2006 coming into effect, this communication dated 30.03.2006 has been forwarded to the Department by the assessee. The intention of springing up such a letter is evident from the fact that intention was to evade payment of duty payable under Section 4 of CE Act; despite knowing the fact that its product was not covered under relevant notification which provides for valuation under Section 4A, yet the assessee did so, only to pay duty on lower value as per Section 4A of CE Act, by claiming the product manufactured by it as „chewing tobacco‟ rather than „zarda/jarda scented tobacco‟ to avail benefit of MRP-based assessment which was lower than the value as prescribed under Section 4 of the CE Act."
(emphasis supplied)
46. It is in view of the fact that the assessee had cleverly drafted the letter so as not to reveal the correct details of the product that was being manufactured that the Supreme Court held that the appellant suppressed the change of name and classification of the goods which it 28 E/51902/2021 was currently manufacturing. This decision would, therefore, not help the department as it is based on the peculiar facts of the case.
47. In M/s. Patanjali Yogpeeth Trust vs. Commissioner of Central Excise, Meerut-I17, the Tribunal recorded a categorical finding that the appellant suppressed the fact that it had received consideration for the provision of services and on the other hand reflected the same as donation in the books of account. This decision also, therefore, would not come to the aid of the department.
48. The show cause notice also alleged that in an era of self- assessment in assessee in required to correctly discharge the duty liability but the appellant wrongly availed the benefit of the exemption notification with an intent to evade payment of duty. The Commissioner also held that mere intimation to the department in the periodic returns does not mean any kind of approval or validation by the department.
49. This approach of the Commissioner cannot be countenanced. It is the duty of the officers scrutinizing the returns to examine the information disclosed by an assessee and the department cannot be permitted to take a plea that it is the duty of the assessee to disclose correct information and it is not the duty of the officers to scrutinize the returns.
50. In this connection, reference can be made to the decision of the Tribunal in M/s. Raydean Industries vs. Commissioner CGST, Jaipur18. The Tribunal, in connection with the extended period of limitation, observed that even in a case of self assessment, the department can always call upon an assessee and seek information and
17. Service Tax Appeal No. 55429 of 2013 decided on 05.10.2023
18. Excise Appeal No. 52480 of 2019 decided on 19.12.2022 29 E/51902/2021 it is the duty of the proper officer to scrutinize the correctness of the duty assessed by the assessee. The Division Bench also noted that departmental instructions issued to officers also emphasis that it is the duty of the officers to scrutinize the returns. The relevant portion of the decision of the Tribunal is reproduced below:
"24. It would be seen that the ER-III/ER-I returns filed by the applicant clearly show that the applicant had categorically declared that it had cleared the final products by availing the exemption under the notification dated 17.03.2012. The applicant had furnished the returns on the basis of self assessment. Even in a case of self assessment, the Department can always call upon an assessee and seek information. It is under sub-rule (1) of rule 6 of the Central Excise Rules, 20028 that the assessee is expected to self assess the duty and sub-rule (3) of rule 12 of the 2002 Rules provides that the proper officer may, on the basis of information contained in the return filed by the assessee under sub-rule (1), and after such further enquiry as he may consider necessary, scrutinize the correctness of the duty assessed by the assessee. Sub-rule (4) of rule 12 also provides that every assessee shall make available to the proper officer all the documents and records for verification as and when required by such officer. Hence, it 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 30 E/51902/2021 Board of Excise & Customs 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:
xxxxxxxxx
26. The Central Excise Manual published by CBEC on May 17, 2005, which is available on the website of CBEC, devotes Part VI to SCRUTINY OF ASSESSMENT.
xxxxxxxxxx
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."
(emphasis supplied)
51. The view that has been taken by the Commissioner was also not accepted by the Tribunal in G.D. Goenka and the observations are as follows:
"16. Another ground for invoking extended period of limitation given in the impugned order is that the appellant was operating under self- assessment and hence had an obligation to assess service tax correctly and take only eligible CENVAT credit and if it does not do so, it amounts to suppression of facts with an intent to evade and violation of Act or Rules with an intent to evade. We do not find any force in this argument because every assessee operates under self- assessment and is required to self-assess and pay service tax and file returns. If some tax escapes assessment, section 73 provides for a SCN to be issued within the normal period of limitation. This provision will be rendered otiose if alleged incorrect self- assessment itself is held to establish wilful suppression 31 E/51902/2021 with an intent to evade. To invoke extended period of limitation, one of the five necessary elements must be established and their existence cannot be presumed simply because the assessee is operating under self-assessment."
(emphasis supplied)
52. It also needs to be noticed that in the present case three Audits had been conducted. The first Audit was conducted in March 2016 for the period from April 2011 to March 2015. All the relevant facts were disclosed by the appellant and even otherwise the Audit Team could have required the appellant to provide all the information. No infirmity was found by the Audit Team and the Audit Team gave a Fair Audit Report to the appellant. The second Audit was conducted in April/May 2018 for the period from April 2014 to June 2017. The appellant again submitted all the relevant documents. The Audit Team also gave a fair Audit Report to the appellant. The Department, therefore, cannot allege that the appellant had suppressed any facts. The show cause notice could have been issued within the normal period contemplated under section 11A(1) of the Central Excise Act but it was issued only on 26.06.2020.
53. In this connection, it may be pertinent to refer to the decision of the Tribunal in M/s. India Glycols Limited vs. Commissioner of CGST & Central Excise19. The Tribunal held:
"39. What, therefore, transpires from the aforesaid decisions is that there can be a difference of opinion between the department and Revenue and an assessee may genuinely believe that it is not liable to pay duty. On the other hand, the department may have an opinion that the assessee is liable to pay duty. The assessee may, therefore, not pay duty in the self-
19. Excise Appeal No. 52129 of 2019 decided on 20.08.2024 32 E/51902/2021 assessment carried out by the assessee, but this would not mean that the assessee has wilfully suppressed facts. To invoke the extended period of limitation, one of the five necessary elements must be established and their existence cannot be presumed merely because the assessee is operating under self assessment. If some duty escapes assessment, the officers of the department can always call upon the assessee to submit further documents and he may also conduct an enquiry. In fact when the audit was conducted, the officers of the audit team would have scrutinized the records and, therefore, notice should have been issued within the stipulated time from the date the audit was conducted. Even otherwise merely because facts came to light only during the audit does not prove that there was an intent on the part of the assessee to evade payment of duty."
(emphasis supplied)
54. Learned authorized representative appearing for the department has, however, referred to a decision of the Tribunal in M/s. Godawari Power & Ispat Limited vs. Commissioner of Central Excise & Service Tax, Raipur20, and in particular to paragraph 20, to contend that the extended period of limitation was correctly invoked. The relevant observations of the Tribunal are:
"20. The contention of the learned counsel of the appellant that they were subjected to the audits earlier may not immune them as they have not provided any evidence of the disclosures to the audits earlier which render them to prove that department ignored certain facts despite being bought to the notice. Audit is always a selective audit and non-pointing out of any lapse by audit depend upon the many factors like disclosure of the information to the audit, submission of the concerned record before the audit, thorough disclosure of the activity before the audit etc. Non pointing out
20. 2024 (4) TMI 816 - CESTAT New Delhi 33 E/51902/2021 during audit cannot be a ground to declare it to be non- suppression."
55. In the present case, as noticed above, detailed information was provided by the appellant to the Audit Team during the course of all the two earlier Audits. This decision of the Tribunal in Godawari Power & Ispat would, therefore, not come to the aid by the department.
56. The appellant had also been regularly filing the excise returns. The Commissioner observed that mere filing of the returns does not mean any kind of approval or validation by the department since in an era of self-assessment, the party has to correctly disclose the facts.
57. The Tribunal in Sunshine Steel Industries vs. Commissioner of CGST, Customs & Central Excise, Jodhpur21 observed that the department cannot be permitted to invoke the extended period of limitation by merely stating that it is a case of self-assessment. The relevant observations are:
"20. The Department cannot be permitted to invoke the period of limitation by merely stating that it is a case of self-assessment as even in a case of self-assessment, the Department can always call upon an assessee and seek information. It is under sub-rule (1) of rule 6 of the Central Excise Rules, 2002 that the assessee is expected to self-assess the duty and sub-rule (3) of rule 12 of the Rules provides that the proper officer may, on the basis of information contained in the return filed by the assessee under sub-rule (1), and after such further enquiry as he may consider necessary, scrutinize the correctness of the duty assessed by the assessee. Sub-rule (4) of rule 12 also provides that every assessee shall make available to the proper officer all the documents and records for verification as and when required by such officer. Hence, it was the duty of the proper officer to have scrutinized the
21. (2023) 8 Centax 209 (Tri.-Del.) 34 E/51902/2021 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."
(emphasis supplied)
58. Civil Appeal No. 4246 of 2023 (Commissioner of CGST, Customs and Central Excise vs. Sunshine Steel Industries) filed by the department before the Supreme Court to assail the aforesaid decision of the Tribunal in Sunshine Steel Industries was dismissed by the Supreme Court on 06.07.2023 and the judgment is reproduced below:
"Delay condoned.
2. Heard learned counsel for the appellant.
3. This Court is not inclined to interfere with the impugned order of the High Court (Sic).
4. The appeal is dismissed.
5. Pending applications, if any, are disposed of."
59. It would also be relevant to refer to the decision of the Tribunal in M/s. Kalya Constructions Private Limited vs. The Commissioner, Central Excise Commissionerate, Udaipur22, wherein it was observed:
"11. Both the SCNs further state that had the audit not conducted scrutiny of the records, the short paying the service tax would not have come to notice. It is a matter of fact that all the details were available in the records of the appellant. The appellant was required to furnish returns under section 70 with the Superintendent of Central Excise which it did. It is for the Superintendent to scrutinize the returns and ascertain if the service
22. Service Tax Appeal No. 54385 of 2015 decided on 15.11.2023 35 E/51902/2021 tax had been paid correctly or not. If the assessee either does not make the returns under section 70 or having made a return, fails to assess the tax in accordance with the provisions of Chapter or Rules made thereunder, the Superintendent of Central Excise can make the best judgment assessment under section 72. For this purpose, he may require the assessee to produce such accounts, documents or other evidence, as he may deem necessary. Such being the legal position, if some tax has escaped assessment which came to light later during audit, all it shows is that the Superintendent of Central Excise with whom the returns were filed had either not scrutinized the returns or having scrutinized then found no error in self- assessment but the audit found so much later. Had the Superintendent scrutinized the returns calling for whatever accounts or records were required, a demand could have been raised within the normal period of limitation. The fact that the alleged short payment came to light only during audit does not prove the intent to evade payment of service tax by the appellant, but it only proves that the Range Superintendent had not done his job properly. For these reasons, we find that the demand for the extended period of limitation cannot be sustained."
(emphasis supplied)
60. The aforesaid discussion would, therefore, lead to the inevitable conclusion that the extended period of the limitation could not have been invoked in the facts and circumstances of the case. The entire period covered under the show cause notice is for the extended period of limitation. The impugned order would, therefore, have to be set aside for the sole reason that the extended period of limitation contemplated under section 11A(4) of the Central Excise Act could not have been invoked.
36
E/51902/2021
61. It would, in such circumstances, not be necessary to examine the issue on merits.
62. The impugned order dated 30.09.2021 passed by the Commissioner is, accordingly, set aside and the appeal is allowed.
(Order pronounced on 17.02.2025) (JUSTICE DILIP GUPTA) PRESIDENT (P. V. SUBBA RAO) MEMBER (TECHNICAL) Jyoti