Page 213 - ELT_15th July 2020_Vol 373_Part 2

2020 ] PR. COMMISSIONER OF C. EX., CHANDIGARH-I v. DEYAM INDUSTRY 195

6. Undisputedly, the revenue has not taken action against the assessee
within the period of one year from the relevant date. What is that relevant date in
the given facts and circumstances, is not in dispute, for it is the date on which the
goods were cleared, i.e. date of clearance of goods/filing of monthly returns.
Both events incidentally fall within the same month, which in the instant case,
was February, 2008. We clarify that such fact is not disputed by anyone of the
parties before us. It is also a matter of record that in July, 2009 itself, the assessee
had apprised the department of revenue, by way of a declaration, as envisaged
under the Act/Rules/Regulations, indicating its intent of taking benefit of Noti-
fication dated 10-6-2003.
7. Thus far, it is clear that assessee had made evident its intent of avail-
ing the benefits under the Act, in accordance with law.
8. It is also not in dispute that only after the statutory period of one
year having come to an end, but prior to five years, did the revenue initiate pro-
ceedings against the assessee with the issuance of show cause notice dated 19th
April, 2011.
9. The question which needs to be examined is as to whether it was
open for the revenue/authorities to have done so? Is it a case where the assessee
had indulged in an act of fraud, collusion or willful misstatement/suppression of
facts or contravention of any of the provisions of the Act or rules made thereun-
der.
10. We find the Tribunal to have adequately taken note of the factual
situation and applied the provisions of law, in arriving at its conclusion, that the
revenue had failed to make out its case, falling within any one of the exceptions
stipulated in the proviso to the main Section. We are in agreement with such
findings.
11. We also notice that under identical circumstances, the Apex Court
in case titled as Pushpam Pharmaceuticals Company v. Collector of Central Excise,
Bombay, 1995 Supp (3) SCC 462 = 1995 (78) E.L.T. 401 (S.C.) has explained under
what circumstances proviso to the Section can be invoked by the revenue, for
taking benefit of the extended period of limitation up to five years. The Apex
Court explained that in normal understanding, contravention of any of the pro-
visions of the Act cannot be read separately, in isolation or differently, that of the
accompanying words, such as fraud, collusion or willful default. Further, “the
acts so as to constitute anyone of the exceptions must be deliberate and that in
taxation, it can have only one meaning that the correct information was not dis-
closed deliberately to escape from payment of duty. Where facts are known to
both the parties omission by one to do what he might have done and not that he
must have done, does not render it suppression.”
12. It is under these circumstances we are not inclined to interfere with
and set aside order dated 13-7-2015, passed by the Customs, Excise & Service Tax
Appellate Tribunal, West Block No. 2, R.K. Puram, Principal Bench, New Delhi.
Also the question of law sought to be answered is well-settled and no longer res
integra.
13. With the aforesaid observations, the appeal stands disposed of, so
also pending miscellaneous application(s), if any.
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EXCISE LAW TIMES  15th July 2020  213