Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *   CBIC issues draft rules for Customs valuation *  Top Headlines: Threshold for Benami deals, green bond investors, and more *  Govt aims 1-hour clearance for goods at all ports *  Exporters Allowed To Use RoDTEP, RoSCTL Scrips To Pay Customs Duty, Transfer Them; Rules Amended *  Millions of labourers to be affected by brick producers’ strike over hike in GST, coal rates *  Inauguration of ‘kendriya GST parisar’ *  Transporter can seek Release of Conveyance alone, not Goods under GST Act: Madras HC *  GST: Quoting of DIN Mandatory for Responding to Notice, Govt Modifies Portal *  Firms can soon file claims for GST credits of ?400 cr *  CBIC issues modalities for filing transitional credit under GST. *  Mumbai: Man creates 36 fake GST firms, arrested for input tax credit fraud of Rs 23 cr *  Report to restructure Commerce Ministry under study; idea is to set up trade promotion body: Goyal *  Firms can soon file claims for GST credits of ?400 cr *  Gambling Alert! Govt May Levy Up To 28% GST; UP, Bengal Back Move *  EPFO backs raising retirement age to ease pressure on pension funds *  India Moving Up Power Scale, Set to Become Third Largest Economy By 2030 *  Airfares Get Expensive: What Changes for Flyers From Today? *  IRCTC Latest News: Passengers to Pay More For Cancelling Confirmed Rail Tickets Soon. *  IBC prevails over Customs Act, says Supreme Court. *  As GST enters sixth year, a time for evaluation and reassessment *  There’s GST on daily essentials as Centre needs money to buy MLAs: Arvind Kejriwal *  Now, GST on cancellation of confirmed train tickets, hotel bookings *  GST kitty for top States could rise 20% in FY23, says Crisil *  French customs officials seize another cargo vessel over Russia sanctions *  TradeLens builds on Asia momentum with Pakistan Customs deal *  Hike tax on tobacco, reduce affordability & increase revenue: Civil society organizations to GST council *  Bihar: ?10 crore tax evasion on tobacco products detected in raids *  Centre failed on GST, COVID; would it be anti-national? Rajan on Infosys row *  Service Tax not Chargeable on Income Tax TDS portion paid by recipient: CESTAT grants relief to TVS *  Foreign portfolio investors make net investment of Rs 7575cr in Sep so far
Subject News *  Run-up to Budget: Monetary threshold for GST offences may rise to Rs 25 cr *   GST (Tax) E-invoice Must For Businesses With Over Rs 5 Crore Annual Turnover *   Both Central GST and excise duty can be imposed on tobacco, rules Karnataka high court *   CBIC Issues Clarification On Extended Timelines For GST Compliance *   CBIC Issues Clarification On Extended Timelines For GST Compliance *  Budget 2023- 9.6 crore gas connections *  GST: Tamil Nadu Issues Instructions for Assessment and Adjudication Proceedings *  GST: CBIC Extends Last Date for filing of ITC *  GST collection in September surpasses Rs 1.4 lakh crore for straight seventh time *  Dollar smuggling case: Customs chargesheet names M Sivasankar as key conspirator. *  Hike in GST rates fuels inflation *  Assam: CBI arrests GST commissioner in Guwahati *  GST fraud worth ?824cr by 15 insurance Cos detected *  India proposes 15% customs duties on 22 items imported from UK *  Decriminalising certain offences under GST on cards *  Surge in GST collections more due to higher inflation: India Ratings *  MNRE Notifies BCD and Hike in GST Rates as ‘Change in Law’ Events But With a Condition | Mercom India *   Solar projects awarded before customs duty change allowed cost pass-through *  Rajasthan High Court Dismisses Writ Petitions Challenging Levy Of GST On Royalty *   GST revenue in September likely at Rs 1.45 lakh crore *  Govt working on decriminalising certain offences under GST, lower compounding charge *  Building an institution like GST Council takes time, trashing is easy: Sitharaman *  GST collections in Sept may touch ?1.5 lakh crore *  KTR asks Centre to withdraw GST on handlooms *  After Gameskraft, More Online Gaming Startups To Receive GST Tax Claims *  Madras HC: AAR Application Filed Under VAT Does Not Survive After GST Enactment *  Threshold for criminal offences under GST law may be raised *  Bengaluru: Gaming company faces biggest GST notice of Rs 21,000 crore *  CBIC clarifies Classification of Cranes for GST, Customs Duty *  Customs seize gold hidden in bicycle in Kerala airport  

Comments

Print   |    |  Comment

PJ/Case Law/2013-14/2010

Extended period of limitation cannot be invoked when non-payment of duty was due to divergent views on the issue.

Case:-COMMISSIONER OF CENTRAL EXCISE, CUS. & S.T., COIMBATORE Vs KAY KAY PRESS METAL CORPORATION
 
Citation:-2013 (297) E.L.T. 40 (Guj.)


Brief Facts:-The assessee was engaged in manufacturing of fabricated iron and steel structures. The unit used to undertake processes such as cutting, bending, punching with the help of machines available in the factory. The Excise Officers visited the factory premises on 31.3.2000 on the basis of specific information that respondent had been manufacturing the excisable goods without obtaining registration and had thereby indulged into the evasion of duty. On the basis of material gathered during visit, the commissioner of Excise issued show cause notice in March, 2003 calling upon the respondent as to why the excise duty to the tune of Rs. 41,04,217/- should not be levied on the finished goods which were allegedly cleared during the period 1998-1999 and 1999-2000. The assessee had already paid Rs. 1 lakh which amount was accounted for. The assessee was also called upon in the show cause notice for explaining as to why the penalty and interest should not levied. The said show cause notice culminated into order dated 20-5-2004 by the adjudicating authority who confirmed the demand of excise duty for Rs. 41,04,217/-. It also imposed the Penalty of equivalent amount under section 11AC of the central Excise Act, 1944 as well as the penalty of Rs. 5,00,000/- and Rs. 10000/- and further ordered for payment of interest.

The assessee preferred an appeal before the appellate Tribunal (Appeals). The tribunal considered that show cause notice was issued in March, 2003, which was for the period 1998-2000 and thus it was time barred, the department had invoked the extended period as  per the proviso to sec. 11 A of the Act on the ground that there was suppression and misstatement by the assessee. The Tribunal did not approve the action on the part of the department in invoking the extended period. Consequently, the appeal was allowed on limitation. Hence, the revenue department is in appeal.
 
Appellant contentions:-The appeal has been filed by the revenue department wherein following question of law has been framed to be answered by the High Court:-

“Whether the Tribunal below committed substantial error of law in allowing the Appeal filed by the assessee on the question of limitation on the ground of divergence of views at the relevant point of time although according to the law of precedent, even there was divergence of views, it is the duty of the assessee to follow the one which is binding as a precedent.”
 
Respondent contentions:-The respondent prayed for confirming the order passed by the Tribunal on the contention that the same is correct, legal and proper. The respondent contested the demand primarily on the ground of limitation as during the material time, divergent views were prevalent on the issue.

Reasoning of Judgment:- The High Court observed thatwith the following observations, the Tribunal dismissed the appeal of the department.

“….. The law on the issue is clear, i.e. to the effect that when there are views, many of which are in favour of the assessee holding the field, no suppression or mis-statement can be attributed to assessee, to entertain the same belief. As admittedly, in the present case, judgment prior to larger bench in the case of Mahindra & Mahindra Ltd, were lying that the processes allegedly adopted by the appellant did not amount to manufacture, we are of the view that the demand raise beyond the period of limitation, by invoking extended period, is barred. As such, irrespective the said activity or not, the demand is required to be quashed on the above issue itself. Ld. SDR appearing for the Revenue has placed on record the written submissions, which we find are mainly dealing with issues other than limitation.”

The Tribunal was justified in recording the aforesaid findings. In the facts of the case, it was not possible to ascribed any willful suppression or mis-statement on the part of the assessee for not paying excise duty because during the period in question, various decisions of the Tribunal were to the effect that the activity of cutting, bending, bunching of plats or channels in which the assessee was engaged, did not amount to manufacturing activity. In Continental Foundation Jt. Venture v. CCE, Chandigarh, 2007 (216)E.L.T. 177 (S.C.), Apex Court observed that when there was bona fide doubt as to non-excisability of the goods due to divergent views of the Hon’ble Supreme Court, the extended period of 5 years cannot be invoked. Mere failure or negligence in not taking license or not paying duty, is not sufficient for invoking extended period.
 
In the facts of the present case, it cannot be said that the conduct of the assessee was not bona fide. When the activity undertaken by it was not treated as manufacture, it would not have been expected to pay the excise duty. In order to show suppression or misstatement on the part of the assessee, a positive act has to be established. In view of the above, no error was committed by the tribunal in dismissing the appeal. It was not possible to countenance the contention of the learned counsel for the appellant that there was a suppression of facts and payment of duty was intentionally evaded by the assessee. For the foregoing reasons, the question formulated is accordingly answered in negative and in favour of the assessee. The appeal is dismissed being devoid of any merit as discussed above.

Decision:-Appeal Dismissed.

Comment:-The analogy drawn from this case is that when there are divergent decisions on a particular issue, suppression or wilful misstatement cannot be affirmed and so the extended period of limitation cannot be invoked. Moreover, it is also observed very often that the appeal is allowed solely on the grounds of limitation as in the present case.

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com