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 1. 
 2. Excise Duty
 3. Judiciary




EXTENDED PERIOD OF LIMITATION NOT INVOCABLE AS DEPARTMENT BEING FULLY AWARE OF
ISSUE

 * POONAM GANDHI
 * | Excise Duty - Judiciary
   |
 * Download PDF
 * 07 Apr 2023
 * 1,356 Views
 * 0 comment


CASE LAW DETAILS

Case Name : Birla Corporation Limited Vs Commissioner, CGST & Central Excise
(CESTAT Delhi)
Appeal Number : Excise Appeal No. 50799 of 2021
Date of Judgement/Order : 23/03/2023
Related Assessment Year :
Courts : All CESTAT CESTAT Delhi
Download Judgment/Order


BIRLA CORPORATION LIMITED VS COMMISSIONER, CGST & CENTRAL EXCISE (CESTAT DELHI)

CESTAT Delhi held that invocation of extended period of limitation unsustainable
as several rounds of audit was conducted and show cause notice for previous
period on the same issued was already issued. Hence, department was fully aware
of the issue in the question.

Facts- M/s. Birla Corporation Ltd. filed this appeal to assail the denovo OIO
passed by the Principal Commissioner. The matter was initially decided against
the appellant who filed an appeal which was disposed of by this Tribunal
remanding the matter to the Commissioner.

The impugned order was passed confirming the demand of Rs. 49,27,427/-. He also
imposed penalty of Rs. 49,27,427/- u/s 11AC. The appellant mainly contested the
demand as the Show Cause Notice was issued beyond the normal period of
limitation. The appellant also contested the imposition of penalty under section
11AC.

Conclusion- In this case, not only one but several rounds of audit were
conducted. Show Cause Notice was issued for the previous period on the same
issue by the Revenue. Thus, the department was fully aware of the issue in
question, the general marketing pattern of the appellant and it was for the
officer scrutinising the returns to have checked the returns and issued SCN
within time.

For all the above reasons, the impugned order cannot be sustained as the entire
demand is time barred. The appeal is allowed and the impugned order is set aside
with consequential relief to the appellant.

FULL TEXT OF THE CESTAT DELHI ORDER





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M/s. Birla Corporation Ltd.1 filed this appeal to assail the de-novo Order-in
Original dated 30.3.2021 2 passed by the Principal Commissioner, Central Excise
and CGST, Jabalpur. The matter was initially decided against the appellant who
filed appeal No. E/50328/2016 which was disposed of by this Tribunal by Final
Order dated 29.7.2019 remanding the matter to the Commissioner. Paragraphs 12 to
15 of this order are as follows.

12. In view of the above, we hold that the matter needs a detailed verification
and examination of claims made by the appellant at the field level, we remand
back the appeal to the original adjudicating authority for 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 the issue of limitation also in
detail keeping in mind the facts narrated in para 7 above.



15. In view of the entire above discussions, the appeal in hand is allowed by
way of remand as explained in the preceding paragraphs.

2. The impugned order was passed dropping the demand of Rs.3,47,13,776/- and
confirming the demand of Rs. 49,27,427/-. He also imposed penalty of Rs.
49,27,427/- under Section 11AC. Learned counsel for the appellant submits that
the Commissioner correctly calculated the demand of duty on merits based on the
facts presented before him and as per the judgment of the Supreme Court
regarding taxability of the cement supplied to institutional buyers.

3. However, he contested the demand as the Show Cause Notice was issued beyond
the normal period of limitation. He also contested the imposition of penalty
under section 11AC. It is undisputed that to invoke extended period of
limitation and also to impose penalty under section 11AC, one of the following
elements must be present:

a) Fraud;

b) Collusion;

c) Wilful mis-statement;

d) Suppression of facts,

e) Violation of the provisions of the Act or Rules with an intent to evade
payment of duty.

4. According to the learned counsel for the appellant, extended period of
limitation could not have been invoked in this case for the following reasons.

a) This was a case involving interpretation of law which was finally settled by
the Supreme Court in the case of Commissioner vs Madras Cements Ltd. 3 .
Therefore, extended period of limitation could not be invoked.

b) The department was well aware of the facts of the case since SCN was issued
for the previous period on the same issue. Reliance is placed on Nizam Sugar
Factory vs CCE4.

c) Five audits were conducted at the factory every year since 1.1.2008.

d) Without proving any intention to evade, extended period of limitation could
not have been invoked.

5. Learned counsel for the appellant prays that the appeal may be allowed and
the impugned order may be set aside as the entire demand was issued beyond the
normal period of limitation. Penalty under section 11AC can also not be imposed
for the same reason.

6. Learned authorized representative supports the impugned order and reiterates
its findings.

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 the cement in ER-1 and they have also deliberately
misinterpret the definition of „institutional/industrial consumer‟ of SoWM (PC)
Rules as well as provision of notification No. 4/2007-CE dated 01.03.2007 as
amended. As regards the conduct of Audit of records of the Noticee, I find that
EA-2000 Audit is always a selective audit and not 100% audit of records of the
assessee. In such circumstances, it is settled position that the assesse has to
prove on record that the issue raised in the Show Cause Notice was in the
knowledge of Auditors and they had cleared it after due examination. However, no
such evidence had been placed on record by the Noticee. Hence it appears that
mere conduct of audit would not have effect on invocation of extended period.
After having made short-payment of duty on cement over a prolonged period as
evident from Show Cause Notice, in the era of self assessment, the Noticee
cannot be permitted to take shelter of a spacious plea relating to matter being
time barred.

Hence, with due respect to observations of Hon‟ble CESTAT, I find that extended
period of limitation provided under the provisions of Section 11A of Central
Excise Act, 1944 is correctly and squarely invocable and applicable to the
demand of short payment of duty amounting to Rs. 49,42,427/-.” I also rely on
the following decisions for invocation of extended period.”

8. The Commissioner has, thus, invoked extended period of limitation for the
following reasons:

a) Since all material facts came to light only after scrutiny of records, the
suppression of facts with an intent to evade payment of duty was evident.

b) The appellant has not provided any evidence to show that they had provided
any information about the categories of buyers to whom they had cleared the
cement in ER-1.

c) The audit is always done on a selective basis and hence the fact that the
audit was conducted would not come to the aid of the appellant and the demand is
not time-barred.

9. It would be necessary to briefly review the relevant legal provisions
regarding assessment. Central Excise Rules, 2002 provide not only for
self-assessment of duty and filing of returns by the assessee in ER-1, but also
scrutiny of the returns by the officers. Duty of excise is charged on excisable
goods manufactured or produced in India but the duty becomes payable 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 warehouse during a
month shall be paid by the 6th day of the following month, if the duty is paid
electronically through internet banking and by the 5th day of the following
month, in any other case:

Provided that in case of goods removed during the month of March, the duty shall
be paid by the 31st day of March:

Xxxxxx

Rule 12 Filing of return.-

(1) Every assessee shall submit to the Superintendent of Central Excise a
monthly return in the form specified by notification by the Board, of production
and removal of goods and other relevant particulars, within ten days after the
close of the month to which the return relates

Xxxxxxx

(3) 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 on the goods removed, in the manner to e prescribed by the Board.

(4) Every assessee shall make available to the proper officer all the documents
and records for verification as and when required by such officer.

xxxxxx

10. The officer scrutinising the returns can call for any documents and records
from the assessee which is bound to provide them. Thus, as far as the appellant
is concerned, it is only legally bound to self-assess and pay duty and file
returns in ER-1 form. If this form does not require certain details, the
appellant is not required to furnish them. Further, since the returns are filed
online, there is little scope for an assessee to provide extra information.
Therefore, the finding in the impugned order that the appellant had not provided
evidence that it had provided details of the types of customers cannot be
sustained. Unless the ER1 return requires such information and the appellant
does not provide it or provides incorrect information, the appellant cannot be
faulted and this cannot be a ground to allege suppression of facts.

11. Rule 12 requires the officer to scrutinise the returns and for this purpose,
he can call for any information or documents and the assessee is bound to
provide them. If the officer does not scrutinise the return or having
scrutinised, does not call for any relevant information, the responsibility for
it lies on the officer and not on the assessee. It needs to be emphasised that
Audit is only an additional check and the primary check against any incorrect
self-assessment 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 call for
any information.

13. It is also significant in this case that the appellant was issued SCN on the
same issue for an earlier period. Thus, the officer scrutinising the returns
must have been fully aware of what were the potential disputes and could have
examined the ER-I returns and issued the SCNs within time.

14. Equally important is the fact that the issue involved interpretation of the
notification and therefore, the appellant could have legitimately held a
different view from the Revenue and therefore, no intent to evade payment of
duty can be attributed to the appellant.

15. Further, we also find that several rounds of audit were conducted during the
period.

16. To sum up, while the assessee was required to self– assess duty and file
ER-1 return, a check against such self- assessment was the scrutiny which the
officers were mandated to do by Rules. Audit is the next level of check against
the scrutiny. If the audit points out some wrong assessment which was not
pointed out by the officer scrutinising the ER-1 return, the fault lies at the
doorstep of the officer. It does not, by itself, establish that the assessee had
suppressed any facts. In this case, not only one but several rounds of audit
were conducted. Show Cause Notice was issued for the previous period on the same
issue by the Revenue. Thus, the department was fully aware of the issue in
question, the general marketing pattern of the appellant and it was for the
officer scrutinising the returns to have checked the returns and issued SCN
within time.

17. For all the above reasons, the impugned order cannot be sustained as the
entire demand is time barred. The appeal is allowed and the impugned order is
set aside with consequential relief to the appellant.

(Pronounced in open Court on 23.03.2023)

Note

1. Appellant

2. Impugned order

3. 2020(371) ELT A 42 (SC)

4. 2006(4) TMI-SC

Tags: Cestat judgments
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AUTHOR BIO

Name: POONAM GANDHI
Qualification: CA in Practice
Company: N/A
Location: AHMEDABAD, Gujarat, IN
Member Since: 14 Feb 2019 | Total Posts: 2435
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