Failure to declare amount in return alone does not imply wilful suppression

The CESTAT, Chandigarh in M/s. M R Beltings v. Commissioner of Central Excise Rohtak [ Excise Appeal No. 57958 of 2013 dated August 25, 2023] set aside the demand order on the ground that the entire demand is barred by limitation since, the department was not able to bring anything on record to show that the assessee has suppressed the material fact in order to evade the payment of duty.

Facts

M/s. M R Beltings ("the Appellant") is engaged in the manufacturing of conveyor belt and transmission belt in terms of the orders received from various public sector customers.

The Revenue Department ("the Respondent") conducted audit on January 21 and 22, 2009 and found that in case of F.O.R. destination supplies the Appellant has charged the packaging and forwarding charges separately on invoices @ INR 22/- and INR 67.05/- per meter respectively, for the period 2007-08 but the same had not been included in the assessable value for payment of central excise duty.

Accordingly, the Respondent concluded that the Appellant had short paid the tax. 

The Appellant during audit paid the total alleged short paid amount under protest vide letter dated October 21, 2010 along with Form-R for refund thereof.

Thereafter, a Show Cause Notice was issued on November 09, 2010 ("the SCN") to the Appellant demanding duty under Section 11A(2) of the Central Excise Act, 1944 ("Central Excise Act") by invoking the extended period of limitation.

The Adjudicating Authority vide order dated March 05, 2013 ("the Order") confirmed the demand and appropriated the amount deposited under protest. Further, demanded interest under Section 11AB and imposed equal penalty under Section 11AC of the Central Excise Act.

Thereafter, the Commissioner (Appeal) vide Order in Appeal dated March 05, 2013 ("the Impugned Order") rejected the appeal of the Appellant.

Aggrieved by the Impugned Order, the Appellant filed an appeal before the CESTAT, Chandigarh.

Issue

Whether Adjudicating Officer can go beyond the SCN and impose penalty in Order?

Held

The CESTAT, Chandigarh in Excise Appeal No. 57958 of 2013 held as under:

• Noted that, the SCN received by the Appellant on November 16, 2010 for the period pertaining to 2007-08 by invoking the extended period of limitation without the ingredients present as required under Section 11A(4) of the Central Excise Act.
• Further noted that, the Appellant has regularly filed ER-1 returns which was scrutinized by the Respondent and the Respondent never raised the objection regarding the irregularity committed by the Appellant.
• Also noted that, the Respondent has not been able to bring on record anything to show that the appellant has suppressed the material fact in order to evade the payment of duty. 
• Observed that, the Hon'ble Supreme Court in the case of Anand Nishikawa Co. Ltd. v. CCE 12005 (188) ELT 0149 (S.C)]interalia held 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 not that he must have done would not render it suppression. It is settled law that mere failure to declare does not amount to willful suppression. There must be some positive act from the side of the assessee to find willful suppression.
• Held that, the entire demand is barred by limitation, set aside the Impugned Order.