Excise & Customs : Question of suppression of material facts is germane to both issues i.e., invocation of extended period of limitation and levy of penalty; hence, Tribunal order upholding extended period while setting aside penalty was remanded back
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[2015] 54 taxmann.com 95 (Punjab & Haryana)
HIGH COURT OF PUNJAB AND HARYANA
Universal Timber Corporation
v.
Commissioner of Central Excise, Panchkula*
RAJIVE BHALLA AND B.S. WALIA, JJ.
CENTRAL EXCISE APPEAL NOS. 59,63 AND 70 OF 2014†
DECEMBER 9, 2014
Section 11A, read with sections 5A and 11AC, of the Central Excise Act, 1944, sections 73 and 78 of the Finance Act, 1994 and Section 28 and 114A of the Customs Act, 1962 - Recovery - Of duty or tax not levied/paid or short-levied/paid or erroneously refunded - Invocation of Extended Period of Limitation - Assessee claimed exemption and informed department about it - Department found that assessee was not eligible for exemption and denied same invoking extended period and also levied penalty - Tribunal upheld extended period but set aside penalty on ground that there was no suppression of facts - Assessee argued that since Tribunal recorded positive finding about no suppression of facts, extended period could not also be invoked - Department argued that since extended period was upheld and since there was suppression, penalty should be levied - HELD : While setting aside penalty, Tribunal recorded a positive finding that there is no suppression of relevant facts - Question of suppression of material facts is germane to both issues i.e., assumption of jurisdiction by Assessing Authority to re-assess and penalty - Having held that there is no suppression of material facts while deciding question of penalty, Tribunal was required to apply this finding to legality of assumption of jurisdiction to re-assess duty - In view of contradiction, matter was remanded back to Tribunal for adjudication afresh [Paras 7 to 9] [Matter remanded]
■■■
[2015] 54 taxmann.com 95 (Punjab & Haryana)
HIGH COURT OF PUNJAB AND HARYANA
Universal Timber Corporation
v.
Commissioner of Central Excise, Panchkula*
RAJIVE BHALLA AND B.S. WALIA, JJ.
CENTRAL EXCISE APPEAL NOS. 59,63 AND 70 OF 2014†
DECEMBER 9, 2014
Section 11A, read with sections 5A and 11AC, of the Central Excise Act, 1944, sections 73 and 78 of the Finance Act, 1994 and Section 28 and 114A of the Customs Act, 1962 - Recovery - Of duty or tax not levied/paid or short-levied/paid or erroneously refunded - Invocation of Extended Period of Limitation - Assessee claimed exemption and informed department about it - Department found that assessee was not eligible for exemption and denied same invoking extended period and also levied penalty - Tribunal upheld extended period but set aside penalty on ground that there was no suppression of facts - Assessee argued that since Tribunal recorded positive finding about no suppression of facts, extended period could not also be invoked - Department argued that since extended period was upheld and since there was suppression, penalty should be levied - HELD : While setting aside penalty, Tribunal recorded a positive finding that there is no suppression of relevant facts - Question of suppression of material facts is germane to both issues i.e., assumption of jurisdiction by Assessing Authority to re-assess and penalty - Having held that there is no suppression of material facts while deciding question of penalty, Tribunal was required to apply this finding to legality of assumption of jurisdiction to re-assess duty - In view of contradiction, matter was remanded back to Tribunal for adjudication afresh [Paras 7 to 9] [Matter remanded]
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