TAXAP/1491/2007 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL No. 1491 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA HONOURABLE MS.JUSTICE H.N.DEVANI ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= THE COMMISSIONER OF CENTRAL EXCISE & CUSTOMS, SURAT-I Versus VISHAL TEXURISING (P) LTD. ========================================= Appearance : MR HARIN P RAVAL for the Appellant None for Opponent(s) : 1, ========================================= CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA and HONOURABLE MS.JUSTICE H.N.DEVANI Date : 10/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE D.A.MEHTA) 1. Commissioner of Central Excise and Customs, Surat I, the TAXAP/1491/2007 2/5 JUDGMENT appellant herein has proposed the following question stated to be substantial question of law. (a) Whether, in the facts and circumstances of the present case, the tribunal is justified in upholding the view of the appellate authority that the demand was barred by limitation on the ground that there was no justification for invocation of the longer period of limitation in absence of suppression of facts or misstatement with intention to evade payment of duty despite contravention of provisions of Notification No.1/93-CE dated 08.02.1993? 2. Heard learned counsel for the appellant. It is submitted that the respondent has claimed benefit of Notification No.1/93-CE dated 8.2.1993 despite the fact that the respondent had crossed the monetary limit specified in the notification, and was thus not entitled to the concession available to a small scale industrial unit. That in the circumstances, Customs, Excise and Service Tax Appellate Tribunal (the Tribunal) has committed an error in confirming the order of Commissioner (Appeals) by holding that there was no suppression of facts or misstatement with intention to evade payment of duty. In support of the submissions, attention was invited to the observations made by the adjudication officer in the order in original to point out that for the period October and November 1994, similar claim was made which came to be rejected and confirmed by the Commissioner (Appeals). That for subsequent period from December 1994 to February 1995, which is the period in question, similar short payment of duty was found and accordingly revenue was entitled to raise the demand beyond the statutory period by invoking extended period of limitation. TAXAP/1491/2007 3/5 JUDGMENT 3. The Tribunal has in the impugned order dated 17.4.2007 noted the following facts and thereafter recorded its finding. “3. Respondents are engaged in the manufacture of texturised yarn falling under Chapter 54 of CETA, 1985, the said yarn was specified as one of the items and entitled for small scale exemption Notification No.1/93 with effect from 25.4.94. It is seen that originally, there was a dispute and confusion in their industry as regards the computation of clearance value of Rs.50 lakhs and Rs.75 lakhs. It is seen that a demand notice was issued to the appellant earlier and the matter was decided by the Commissioner (Appeals) vide which his order dated 24.9.96 and the short payment was deposited by them in their modvat account. 4. The present show cause notice was issued on 25.11.99 for short payment of duty during the period December 1994 to February 1995, on the same ground, duty was confirmed by the Additional Commissioner but set aside by the Commissioner (Appeals) by observing as under: “I find that the main contention of the appellant is that they were regularly filing RT-12 returns along with relevant invoices for clearance of excisable goods during the relevant period and they had also filed declaration under Rule 173B claiming benefit of SSI exemption. Therefore, there is no suppression of facts and hence the demand is time barred. I have perused the copies of RT-12 returns and the declaration filed under Rule 173B by the appellant and I find that the TAXAP/1491/2007 4/5 JUDGMENT same were acknowledged by the department. Under t he circumstances, the suppression of facts is not proved. Therefore, I agree with the appellant that the demand issued after four years is time barred. I find that the impugned order is liable to be set aside on the grounds of limitation alone and hence I do not find it necessary to discuss any other point.” 5. After hearing both sides, I do not find any infirmity in the demand being held as barred by limitation by the appellant authority. Admittedly, the entire facts were within the knowledge of the revenue when the earlier facts were within the knowledge of the revenue when the earlier show cause notice was issued on the same ground. The respondents were also fling regular RT-12 returns along with declaration. There is no justification for invocation of longer period of limitation, in the absence of any suppression of facts or misstatement with intention to evade payment of duty. As such, I find no merits in the revenue's appeal. The same is accordingly rejected.” 4. Thus, on a plain reading, it becomes apparent that the first appellate authority perused the copies of RT-12 returns and the declaration filed under Rule 173B by the respondent assessee and recorded that in the circumstances, no suppression of facts was proved. It is further noted by the first appellate authority that the returns and declarations were on record and had been acknowledged by the department. In light of these findings recorded by the first appellate authority, the Tribunal has stated that admittedly, the entire facts were within the knowledge of the revenue when the earlier show cause notice TAXAP/1491/2007 5/5 JUDGMENT was issued to the respondent assessee on the same ground. 5. In backdrop of aforesaid findings of fact after appreciating the evidence on record if both Commissioner (Appeals) and the Tribunal have concurrently found that there was no justification for invoking larger period of limitation in absence of any suppression of facts or misstatement with intention to evade payment of duty, it is not possible to state that any error in law has been committed by the Tribunal so as to give rise to a substantial question of law. 6. Hence, in absence of any question of law, as proposed or otherwise, much less a substantial question of law, the appeal is dismissed. (D.A. MEHTA, J.) (HARSHA DEVANI, J.) shekhar/-