IMPORTANT POINT
An assessee can be accused for suppressing only such facts which it was otherwise required to be disclosed under the law.

JUDGMENT :

KRISHNA MURARI, J.

1. The present appeals are directed against the impugned order dated 17.03.2009 passed by the Customs, Excise & Service Tax Appellate Tribunal (CESTAT), Ahmedabad, in C.O No. M/419-21/WZB/AHD/08 whereby, the learned Tribunal allowed the appeal therein. Since the central issues involved in Civil Appeal Nos. 6033/2009 and 5714/2011 are the same, they are being adjudicated upon by this common order.

FACTS

2. For the sake of convenience, we are first taking up the facts of Civil Appeal No. 6033/2009. The order impugned in this appeal is that of Customs, Excise & Service Tax Appellate Tribunal (CESTAT or Tribunal) dated 17.3.2009 which had, by a majority of 2:1, allowed an appeal filed by the Respondent-Assessee against an order of the Commissioner of Central Excise, Rajkot by which a demand for differential duty was confirmed against the assessee by invoking the extended period of limitation available under the proviso to Section 11A (1) of the Central Excise Act, 1944.

3. The demand for differential duty of excise was raised on the allegation that the assessee had incorrectly determined the assessable value of its finished goods by not including therein the monetary value of the duty benefits that it had obtained from its customers as a result of the transfer of the advance licenses.

4. This demand for differential duty was raised for clearances made during the period of September 2000 to March 2004. The Show Cause Notice which was issued on 28.9.2005 relied upon a judgment of this Court on 9.8.2005 in the case of IFGL Refractories Ltd in support of the plea that monetary value of duty benefits obtained through transfer of advance licenses held by the customers constituted additional consideration flowing to the assessee from such customers.

5. Since the demand for differential duty was being raised on 28.9.2005, which was beyond the normal limitation period of one year prescribed in Section 11A(1) of the Act, the show cause notice also alleged that the noticee had deliberately suppressed relevant facts and had made willful misstatements withholding material information and documents from the departmental officers.

6. The allegations in the notice were confirmed by the Commissioner in his order dated 30.10.2006 wherein the assessee's defense on merits as well as on limitation were rejected.

7. The Commissioners' order was challenged by the assessee before CESTAT, which allowed that appeal by a majority order by accepting the assessee's plea that the dispute was revenue neutral having no Revenue implications since the customers of the assessee were eligible to avail cenvat credit of duties actually paid or any differential duty payable on the goods cleared by the assessee. We are not dwelling deeper on the other findings of the Tribunal on the merits of the matter since these appeals are being decided only on the issue of time bar.

8. On the issue of time bar, the CESTAT has held that during the relevant period the Appellant could have entertained a bonafide belief that it had correctly discharged its duty liability in view of the view taken by the Tribunal in the case of IFGL Refractories Ltd.( [2001 (134) ELT 230], which came to be reversed by this Court only on 9.8.2005. It is relevant to note here that insofar as the decision on time bar is concerned the view of the two learned members who constituted the division bench of CESTAT was unanimous.

9. The difference of opinion, therefore, arose only on the merits of the matter which also came to be decided in favour of the assessee by a 2-1 majority. Since arguments before us are confined to the issue of limitation, it is necessary to take note of the findings of the CESTAT on the same. The finding of the Member (Technical) on the issue of limitation was as under:

“As regards the submission on time bar, it is noticed that the Commissioner has relied on the Hon'ble Supreme Court's judgement dt. 9.8.2005 in the case of M/s. IFGL Refractories Ltd. cited supra. Th