COMMISSIONER, CENTRAL EXCISE AND CUSTOMS AND ANOTHERversusM/S RELIANCE INDUSTRIES LTD.

1286               [2023] 9COURT
                SUPREME     S.C.R. REPORTS
                                   1286 : 2023 INSC 591
                                                     [2023] 9 S.C.R.


 A       THE COMMISSIONER, CENTRAL EXCISE AND CUSTOMS
                        AND ANOTHER
                                         v.
                      M/S RELIANCE INDUSTRIES LTD.
 B                        (Civil Appeal No. 6033 of 2009)
                                  JULY 04, 2023
            [KRISHNA MURARI AND BELA M. TRIVEDI, JJ.]
              Central Excise Act, 1944: s. 11A – Demand for differential
       duty of excise – Invocation of extended period of limitation –
 C
       Allegation that the assessee incorrectly determined the assessable
       value of its finished goods by not including the monetary value of
       the duty benefits that it had obtained from its customers as a result
       of the transfer of the advance licenses – Demand of differential
       duty during the material period by the Department invoking the
 D     extended period of limitation available u/s. 11A(1) proviso – Demand
       raised beyond the normal limitation period of one year – Allegation
       that the assessee suppressed the relevant facts and made wilful
       misstatements withholding material information and documents from
       the department – Demand for differential duty confirmed against
       the assessee – However, the tribunal set aside the same – On appeal,
 E
       held: In the absence of any specific column or note as under Form
       ER-1, requiring separate disclosure of the value of deemed export
       clearances, no merit in the findings of the adjudicating authority
       that there was suppression of facts as a consequence of assessee’s
       failure to separately disclose the value of deemed export clearances
 F     – Moreover, the issue of valuation involved is one where two
       plausible views could co-exist – In such cases, it would be totally
       unjustified to invoke the extended period of limitation by considering
       the assessee’s view to be lacking bonafides – Whereas, assessee’s
       conduct during the material period cannot be considered to be
       malafide when it merely followed the view taken by the tribunal in
 G
       IFGL’s case which was later overturned by this Court – As regards,
       disclosure of facts, the assessee had disclosed to the department its
       pricing policy by giving separate letters – Assessee can be accused
       for suppressing only such facts which it was otherwise required to
       be disclosed under the law – However, the revenue unable to show
 H     the provision or rule which required the assessee to make additional
                                       1286
 THE COMMISSIONER, CENTRAL EXCISE AND CUSTOMS v.                       1287
          M/S RELIANCE INDUSTRIES LTD.

disclosures of documents or facts – Thus, the assertion that there     A
was suppression of facts not tenable – Furthermore, the demands
raised are time barred.
      Dismissing the appeals, the Court
       HELD: 1.1 The format of the ER-1/RT-12 return which the
assessee was required to file on a monthly basis for intimating to     B
the department the value of clearances effected and the amounts
of duties paid thereon. There is no separate column or
requirement in these forms for declaring the value and other
details of clearances effected to the deemed export buyers i.e.
holders of advance licenses. Note 4 under Form ER–1 does               C
require separate details to be mentioned for exports under bond.
Indisputedly clearance made to domestic buyers even if they are
considered deemed exports are not clearances for “exports under
bond” for which category of clearances alone requirement existed
for separate disclosure in the ER-1/RT-12 returns. In the absence
of any specific column or note similar to note 4, requiring separate   D
disclosure of the value of deemed export clearances, there is no
merit in the findings of the adjudicating authority that there was
suppression of facts as a consequence of assessee’s failure to
separately disclose the value of deemed export clearances. An
accusation of non–disclosure can only be made if there is in the       E
first instance a requirement to disclose. [Para 20][1297-B-D]
      1.2 Note 4 to Form ER-1 requires separate details of
clearances to be mentioned for exports under Bond. There is no
reference in the said notes to deemed exports or supplies made
to holders of advance licenses. The submissions that the assessee      F
was never required to separately furnish details of clearances
made to holders of advance licenses is accepted. Neither the
show cause notice nor the civil appeal filed by the Revenue before
this Court contain any reference to the wrongful clubbing of
deemed export clearances under the details meant for domestic
clearances. Also the order of the tribunal does not contain any        G
reference to this particular aspect which was the main thrust of
the oral arguments made by the Counsel for the Revenue before
this Court. The Revenue cannot be permitted to argue its matters
by going beyond the written pleadings filed by it before this Court.
                                                                       H
1288            SUPREME COURT REPORTS                      [2023] 9 S.C.R.


 A     The mere fact that the oral arguments are supported by findings
       of the adjudicating authority, which is not the order impugned
       before this Court, does not entitle the Revenue to resurrect a
       point which though made at the original stage, was never pressed
       before the tribunal or even incorporated in the memo of appeal
       filed before this Court. [Para 21][1297-E-H; 1298-A]
 B
             1.3 The submission of the Revenue that the tribunal’s order
       in the case of IFGL Refractories could not have constituted a
       valid basis for the belief entertained by the assessee in view of
       the fact that the relevant valuation provisions had undergone
       amendments in the year 2000 cannot be accepted. Firstly, this
 C     contention too has not been urged in the Civil Appeal filed by the
       Revenue and has been urged only during the course of the hearing
       before this Court; and secondly, the submission is diametrically
       opposite to what the Revenue itself has been contending on merits
       right from the Show cause notice till the appeal filed before this
 D     Court. On merits, the Revenue’s case throughout had been that
       the issue of valuation is covered against the assessee by the
       judgement of this Court in the case of IL Refractories. Even in
       the order of the CESTAT under challenge the tribunal proceeded
       on the basis that the principle of valuation laid down by this Court
       in the case of IFGL Refractories holds good and remains valid
 E     even under the amended valuation provisions for the period post
       July 2000. It is strange that for the purposes of justifying its case
       on limitation, the Revenue wishes to take a position exactly
       contrary to what it has taken in the Show Cause Notice on merits.
       The Revenue cannot be allowed to blow hot and cold in the same
 F     breath by relying upon IL’s case on merits while at the same
       time arguing that the same had no relevance for the purposes of
       examining the plea for a bonafide belief. [Para 22][1298-B-F]
              1.4 The finding of the tribunal that during the period in
       dispute it was holding a bonafide belief that it was correctly
 G     discharging its duty liability is concurred with. The mere fact that
       the belief was ultimately found to be wrong by the judgment of
       this Court does not render such belief of the assessee a malafide
       belief particularly when such a belief was emanating from the view
       taken by a division bench of tribunal. The issue of valuation

 H
 THE COMMISSIONER, CENTRAL EXCISE AND CUSTOMS v.                       1289
          M/S RELIANCE INDUSTRIES LTD.

involved in this particular matter is indeed one where two plausible   A
views could co-exist. In such cases of disputes of interpretation
of legal provisions, it would be totally unjustified to invoke the
extended period of limitation by considering the assessee’s view
to be lacking bonafides. In any scheme of self–assessment it
becomes the responsibility of the assessee to determine his
                                                                       B
liability of duty correctly. This determination is required to be
made on the basis of his own judgment and in a bonafide manner.
[Para 23][1298-G-H; 1299-A-B]
      1.5. The extent of disclosure that an assessee makes is
also linked to his belief as to the requirements of law. In the
instant case, the assessee who was required to self–assess his         C
liability determined the assessable value on the basis of an
interpretation given by CESTAT. It could not have foreseen that
the view taken by CESTAT would be upset and overturned by
the Supreme Court as it happened on 9.8.2005. The assessee’s
conduct during the material period, between 2000 to 2005 cannot        D
be considered to be malafide when it merely followed the view
taken by the tribunal in IFGL’s case. On the question of disclosure
of facts, the assessee had disclosed to the department its pricing
policy by giving separate letters. It is also not disputed that the
returns which were required to be filed were indeed filed. In these
returns, there was no separate column for disclosing details of        E
the deemed export clearances. Separate disclosures were
required to be made only for exports under bond and not for
deemed exports, which are a class of domestic clearances, entitled
to certain benefits available otherwise on exports. There was
thus, nothing wrong with the assessee’s action of including the        F
value of deemed exports within the value of domestic clearances.
[Para 24][1299-B-E]
      1.6. In the show cause notice itself it has been accepted by
the revenue that the self–assesment procedure did not require
an assessee to submit copies of all contracts, agreements and          G
invoices. This being the admitted position in the notice there is
no basis for agreeing with the findings of the Commissioner that
certain relevant documents had not been filed and thereby
suppressed from the scrutiny of the revenue officers. An assessee
can be accused for suppressing only such facts which it was
                                                                       H
1290            SUPREME COURT REPORTS                      [2023] 9 S.C.R.


 A     otherwise required to be disclosed under the law. The counsel
       for the Revenue has, while pleading that facts was suppressed
       been unable to show the provision or rule which required the
       assessee in this case to make additional disclosures of documents
       or facts. The assertion that there was suppression of facts is
       therefore clearly not tenable. [Para 25][1299-F-H]
 B
             1.7. The Show Cause Notice in CA No. 5744/2011 pertains
       to a different plant of the assessee and sought to invoke the
       extended period of limitation by making similar allegations as in
       CA No. 6033 of 2009. The conclusions with regard to CA No.
       6033 of 2009 apply equally to this appeal. The demands are time
 C     barred. [Para 26][1300-A-C]
             Pushpam Pharmaceuticals Company Vs. Collector of
             Central Excise, Bombay (1995) Supp 3 SCC 462;
             Collector of Central Excise, Hyderabad Vs. M/s.
             Chemphar Drugs and Liniments, Hyderabad (1989) 2
 D           SCC 127 : [1989] 1 SCR 711; IFGL Refractories Ltd.
             [2001 (134) ELT 230] – referred to.
                             Case Law Reference
       (1995) Supp 3 SCC 462          referred to             Para 14
 E     [1989] 1 SCR 711               referred to             Para 15
             CIVIL APPELLATE JURISDICTION : Civil Appeal No.6033
       of 2009.
            From the Judgment and Order dated 17.03.2009 of the Customs,
       Excise & Service Tax, Appellate Tribunal West Zonal Bench at
 F
       Ahmedabad in Appeal No.E/228, 240 and 241 of 2007.
             With
             Civil Appeal No.5714 of 2011.
             Ms. Nisha Bagchi, Mukesh Kumar Maroria, S. S. Rebello, Prahlad
 G     Singh, Advs. for the Appellants.
             Shyam Divan, Sr. Adv., K. R. Sasiprabhu, Jaydeep Patel, Vipin
       Jain, Ms. Shilpa Balani, Udayaditya Banerjee, Vishnu Sharma A. S.,
       Prakhar Agarwal, Advs. for the Respondent.

 H
 THE COMMISSIONER, CENTRAL EXCISE AND CUSTOMS v.                              1291
          M/S RELIANCE INDUSTRIES LTD.

      The Judgment of the Court was delivered by                              A
      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   B
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    C
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             D
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    E
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          F
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           G
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.
                                                                              H
1292               SUPREME COURT REPORTS                          [2023] 9 S.C.R.


 A           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
 B     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.
 C
               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.1 which came to
       be reversed by this Court only on 9.8.2005. It is relevant to note here
 D     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
 E     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
 F              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. This decision of the Hon’ble Supreme Court
                has reversed the decision of the Tribunal in the case of M/s
                IFGL Refractories Ltd. [2001 (134) ELT 230]. In other words,
 G              the Tribunal has taken a view that discounts offered to
                advance licence holders were not additional consideration
                which decision has been reversed by the Hon’ble Supreme
                Court. Under these circumstances, the claim that the appellant
                was having a bonafide belief that the additional discounts
       1
           [2001 (134) ELT 230]
 H
 THE COMMISSIONER, CENTRAL EXCISE AND CUSTOMS v.                             1293
  M/S RELIANCE INDUSTRIES LTD. [KRISHNA MURARI, J.]

          are permissible has to be accepted and demand of duty has          A
          to be confined to duty within the normal period of limitation.
          No penalty will be justified.”
       10. The corresponding finding of the Member (Judicial) on the
issue of limitation were as under:
          “The orders proposed by learned Member (Technical) allowed         B
          Appeal No. E/228/07, on point of limitation, by setting aside
          the confirmation of demand and penalty imposed upon the
          appellant. I agree with the said order passed by learned
          Member (Technical) in the said appeal.”
          ANALYSIS                                                           C

          11. We have heard the contentions of both the parties in great
detail.
       12. Section 11A of the Central Excise Act, 1944, which deals with
the issue of limitation for issuing show cause notices for recovery of       D
duties which have been short paid or short levied, is the governing law in
the present case. Sub-section (1) of Section 11(A), which is most relevant
to the present case, for the sake of convenience, is being reproduced
hereunder:
          “(1) When any duty of excise has not been levied or paid or
                                                                             E
          has been short-levied or short-paid or erroneously refunded,
          whether or not such non-levy or non-payment, short-levy or
          short payment or erroneous refund, as the case may be, was
          on the basis of any approval, acceptance or assessment
          relating to the rate of duty on or valuation of excisable goods
          under any other provisions of this Act or the rules made           F
          thereunder, a Central Excise Officer may, within one year
          from the relevant date, serve notice on the person chargeable
          with the duty which has not been levied or paid or which has
          been short-levied or short paid or to whom the refund has
          erroneously been made, requiring him to show cause why he
                                                                             G
          should not pay the amount specified in the notice: “
       13. The first proviso to the abovementioned sub-section (1), which
is the relevant provision relating to the extended period of limitation,
reads as under:
                                                                             H
1294               SUPREME COURT REPORTS                         [2023] 9 S.C.R.


 A              “Provided that where any duty of excise has not been levied
                or paid or has been short levied or short-paid or erroneously
                refunded by reason of fraud, collusion or any wilfull
                misstatement or suppression of facts, or contravention of any
                of the provisions of this Act or of the rules made thereunder
                with intent to evade payment of duty, by such person or his
 B
                agent, the provisions of this sub-section shall have effect, for
                the words one year the words five years were substituted.”
              14. In the case of Pushpam Pharmaceuticals Company Vs.
       Collector of Central Excise, Bombay2, this Court, while dealing with a
       similar fact circumstance wherein the extended period of limitation under
 C     the abovementioned proviso had been invoked, held that since the
       expression “suppression of facts” is used in the company of terms such
       as fraud, collusion and willful misstatement, it cannot therefore refer to
       an act of mere omission, and must be interpreted as referring to a
       deliberate act of non-disclosure aimed at evading duty, that is to say, an
 D     element of intentional action must be present.
              15. Similarly, in the case of Collector of Central Excise,
       Hyderabad Vs. M/s. Chemphar Drugs and Liniments, Hyderabad 3,
       this Court, while dealing with a similar situation of invocation of extended
       period of limitation under Section 11(A) of the Act, this Court held as
 E     under:
                “In order to make the demand for duty sustainable beyond a
                period of six months and up to a period of 5 years in view of
                the proviso to sub-section 11A of the Act, it has to be
                established that the duty of excise has not been levied or paid
 F              or short-levied or short-paid, or erroneously refunded by
                reasons of either fraud or collusion or willful misstatement
                or suppression of facts or contravention of any provision of
                the Act or Rules made thereunder, with intent to evade payment
                of duty. Something positive other than mere inaction or failure
                on the part of the manufacturer or producer or conscious or
 G              deliberate withholding of information when the manufacturer
                knew otherwise, is required before it is saddled with any
                liability, before the period of six months. Whether in a
                particular set of facts and circumstances there was any fraud
       2
           1995 Sup (3) SCC 462
 H     3
           1989 (2) SCC 127
 THE COMMISSIONER, CENTRAL EXCISE AND CUSTOMS v.                              1295
  M/S RELIANCE INDUSTRIES LTD. [KRISHNA MURARI, J.]

      or collusion or willful misstatement or suppression or                  A
      contravention of any provision of any Act, is a question of
      fact depending upon the facts and circumstances of a
      particular case. The Tribunal came to the conclusion that the
      facts referred to hereinbefore do not warrant any inference
      of fraud. The assesse declared the goods on the basis of their
                                                                              B
      belief of the interpretation of the provisions of the law that
      the exempted goods were not required to be included and these
      did not include the value of the exempted goods which they
      manufactured at the relevant time. The Tribunal found that
      the explanation was plausible, and also noted that the
      Department had full knowledge of the facts about                        C
      manufacture of all the goods manufactured by the respondent
      when the declaration was filed by the respondent. The
      respondent did not include the value of the products other
      than those falling under Tariff Item 14E manufactured by the
      respondent and this was in the knowledge, according to the
                                                                              D
      Tribunal, of the authorities. These findings of the Tribunal
      have not been challenged before us or before the Tribunal
      itself as being based on no evidence”
       16. The main submission of the Learned Counsel appearing on
behalf of the assesse was that during the period under reference i.e.
September 2000 to March 2004, the practice of valuation followed by           E
the assessee was strictly in accordance with the view taken by CESTAT
in IFGL’s case. The CESTAT in that case held that duty benefits received
by an assessee under the duty exemption scheme announced by the
Government cannot be considered as part of the consideration flowing
from the buyer, either directly or indirectly. The Tribunal order refers to   F
several other orders and judgements for coming to the conclusion that
subsidies, incentives and duty drawbacks received by an assessee from
the Central Government or the State Government cannot be regarded
as part of the consideration flowing from the buyer to the seller.
       17. After referring to the detailed observations and finding of the    G
CESTAT, in IFGL’s case, particularly those in para 9 and 10 thereof, the
Ld. Counsel for the assessee submitted that, though the above view of
the Tribunal was reversed by this Court on 9.8.2005 while deciding Civil
Appeal No.4472 of 2001, it cannot be denied that during the period from
28.7.2000 (the date when the Tribunal decided the IGL’s case) till 9.8.2005
                                                                              H
1296             SUPREME COURT REPORTS                            [2023] 9 S.C.R.


 A     (when the Supreme Court reversed it) the view taken by the Tribunal in
       IFGL’s case held the field and thus provided the basis for the assesse to
       believe that its method and approach of determining the assessable value
       was in accordance with law. The Ld. Counsel further pointed out that
       there was otherwise no justification for alleging suppression of facts in
       the present case as the assessee had submitted to the Revenue authorities
 B
       copies of their pricing policy from time to time. Our attention was invited
       to para 2 of the Show Cause Notice dated 28.9.2005 wherein this fact
       has been recorded in the notice.
              18. The Ld. Counsel for the revenue on the other hand submitted
       that the Tribunal had failed to apply its mind to the allegations and specific
 C     finding of the adjudicating authority. It was submitted that the adjudicating
       authority had specifically found that the subject transactions where
       additional discounts had been offered to certain customers who had
       agreed to transfer to the assessee duty benefits flowing from advance
       licence held by them were wrongly clubbed with domestic clearances
 D     with a view to mislead range officer tasked with the responsibility of
       checking the transactions. The Ld. Counsel for the Revenue accordingly
       submitted that the assesse was guilty of suppressing material facts from
       the Revenue authorities and that the Range officer had thus been misled
       into believing that the duty had been correctly paid. The Ld. Counsel
       also invited our attention to the fact that during the relevant period the
 E     assessee was working under self-assessment procedure were the onus
       to correctly assess duty vested upon the assesse. The Ld. Counsel for
       the Revenue also submitted that the finding of the CESTAT about bonafide
       belief based on the CESTAT’s decision on the IGL’s case was also
       unsustainable in view of the specific findings of the adjudicating authority
 F     of suppression of material facts by clubbing of the clearances with
       domestic clearances which mislead the range officer tasked with the
       responsibility of checking all transactions.
              19. Per contra the Ld. Counsel for the assesse submitted that the
       arguments made on behalf of the Revenue traverse beyond the grounds
 G     taken in the appeal and also the allegations in the show cause notice. It
       was his further submission that there was no wrongful clubbing of deemed
       export clearances with domestic clearances. It was pointed out that the
       monthly returns (ER-1/RT-12) that the assessee was required to file
       does not have any separate column for declaring deemed export
       clearances. Since the subject clearances on which differential duty has
 H
 THE COMMISSIONER, CENTRAL EXCISE AND CUSTOMS v.                              1297
  M/S RELIANCE INDUSTRIES LTD. [KRISHNA MURARI, J.]

been demanded has been initially been made upon payment of duty,              A
such clearances had correctly been shown as duty paid domestic
clearances.
       20. We have seen the format of the ER-1/RT-12 return which the
assessee was required to file on a monthly basis for intimating to the
department the value of clearances effected and the amounts of duties         B
paid thereon. We do not find any separate column or requirement in
these forms for declaring the value and other details of clearances
effected to the deemed export buyers i.e. holders of advance licenses.
Note 4 under Form ER-1 does require separate details to be mentioned
for exports under bond. Indisputedly clearance made to domestic buyers
even if they are considered deemed exports are not clearances for             C
“exports under bond” for which category of clearances alone requirement
existed for separate disclosure in the ER-1/RT-12 returns. In the absence
of any specific column or note similar to note 4, requiring separate
disclosure of the value of deemed export clearances, we do find any
merit in the findings of the adjudicating authority that there was            D
suppression of facts as a consequence of assessee’s failure to separately
disclose the value of deemed export clearances. An accusation of non-
disclosure can only be made if there is in the first instance a requirement
to disclose.
       21. We also find that Note 4 to Form ER-1 requires separate            E
details of clearances to be mentioned for exports under Bond. There is
no reference in the said notes to deemed exports or supplies made to
holders of advance licenses. We therefore agree with the submissions
of the counsel for the assessee that the assesse was never required to
separately furnish details of clearances made to holders of advance
licenses. We also find that neither the show cause notice nor the civil       F
appeal filed by the Revenue before this Court contain any reference to
the wrongful clubbing of deemed export clearances under the details
meant for domestic clearances. Also the order of the Tribunal does not
contain any reference to this particular aspect which was the main thrust
of the oral arguments made by the Ld. Counsel for the Revenue before          G
this Court. In our considered view, the Revenue cannot be permitted to
argue its matters by going beyond the written pleadings filed by it before
this Court. The mere fact that the oral arguments are supported by findings
of the adjudicating authority, which is not the order impugned before this
Court, does not entitle the Revenue to resurrect a point which though
                                                                              H
1298            SUPREME COURT REPORTS                           [2023] 9 S.C.R.


 A     made at the original stage, was never pressed before the Tribunal or
       even incorporated in the memo of appeal filed before this Court.
              22. We also find no merits in the other argument urged by the Ld.
       Counsel for the Revenue that the Tribunal’s order in the case of IFGL
       Refractories could not have constituted a valid basis for the belief
 B     entertained by the assesse in view of the fact that the relevant valuation
       provisions had undergone amendments in the year 2000. The argument
       of the Revenue’s Counsel was that in view of the amendments to Section
       4 and Rule 6 of the Valuation Rules the ratio of the Tribunal’s decision in
       IFGL’s case was no longer relevant for the period under consideration
       in these appeals. We have no hesitation in rejecting this contention for
 C     two independent reasons. Firstly, this contention too has not been urged
       in the Civil Appeal filed by the Revenue and has been urged only during
       the course of the hearing before this Court. On this count alone the
       contention deserves to be ignored. Secondly, we also find this contention
       to be diametrically opposite to what the Revenue itself has been
 D     contending on merits right from the Show cause notice till the appeal
       filed before this Court. On merits, the Revenue’s case throughout had
       been that the issue of valuation is covered against the assessee by the
       judgement of this Court in the case of IL Refractories. Even in the order
       of the CESTAT under challenge the Tribunal has proceeded on the basis
       that the principle of valuation laid down by this Court in the case of IFGL
 E     Refractories holds good and remains valid even under the amended
       valuation provisions for the period post July 2000. We therefore find it
       strange that for the purposes of justifying its case on limitation, the
       Revenue wishes to take a position exactly contrary to what it has taken
       in the Show Cause Notice on merits. We cannot allow the Revenue to
 F     blow hot and cold in the same breath by relying upon IL’s case on merits
       while at the same time arguing that the same had no relevance for the
       purposes of examining the plea for a bonafide belief.
             23. We are in full agreement with the finding of the Tribunal that
       during the period in dispute it was holding a bonafide belief that it was
 G     correctly discharging its duty liability. The mere fact that the belief was
       ultimately found to be wrong by the judgment of this Court does not
       render such belief of the assessee a malafide belief particularly when
       such a belief was emanating from the view taken by a division bench of
       Tribunal. We note that the issue of valuation involved in this particular
       matter is indeed one were two plausible views could co-exist. In such
 H
 THE COMMISSIONER, CENTRAL EXCISE AND CUSTOMS v.                                 1299
  M/S RELIANCE INDUSTRIES LTD. [KRISHNA MURARI, J.]

cases of cases of disputes of interpretation of legal provisions, it would       A
be totally unjustified to invoke the extended period of limitation by
considering the assessee’s view to be lacking bonafides. In any scheme
of self-assessment it becomes the responsibility of the assessee to
determine his liability of duty correctly. This determination is required to
be made on the basis of his own judgment and in a bonafide manner.
                                                                                 B
        24. The extent of disclosure that an assessee makes is also linked
to his belief as to the requirements of law. In the present case the assessee
who was required to self-assess his liability determined the assessable
value on the basis of an interpretation given by CESTAT in its order
dated 28.7.2000. It could not have foreseen that the view taken by
CESTAT would be upset and overturned by the Supreme Court as it                  C
happened on 9.8.2005. The assessee’s conduct during the material period
i.e. between 2000 to 2005 cannot be considered to be malafide when it
merely followed the view taken by the Tribunal in IFGL’s case. On the
question of disclosure of facts, as we have already noticed above the
assessee had disclosed to the department its pricing policy by giving            D
separate letters. It is also not disputed that the returns which were required
to be filed were indeed filed. In these returns, as we noticed earlier
there was no separate column for disclosing details of the deemed export
clearances. Separate disclosures were required to be made only for
exports under bond and not for deemed exports, which are a class of
domestic clearances, entitled to certain benefits available otherwise on         E
exports. There was therefore nothing wrong with the assessee’s action
of including the value of deemed exports within the value of domestic
clearances.
       25. We also take note of the fact that in the show cause notice
itself it has been accepted by the revenue that the self-assesment               F
procedure did not require an assessee to submit copies of all contracts,
agreements and invoices. This being the admitted position in the notice
we do not find any basis for agreeing with the findings of the
Commissioner that certain relevant documents had not been filed and
thereby suppressed from the scrutiny of the revenue officers. An assessee        G
can be accused for suppressing only such facts which it was otherwise
required to be disclosed under the law. The counsel for the Revenue
has, while pleading that facts was suppressed been unable to show us
the provision or rule which required the assessee in this case to make
additional disclosures of documents or facts. The assertion that there
was suppression of facts is therefore clearly not tenable.                       H
1300             SUPREME COURT REPORTS                         [2023] 9 S.C.R.


 A            26. Insofar as the appeal No. 5744/2011 is concerned, we find
       that the same pertains to a different plant of the Assessee-Respondent
       where clearances were affected during the period January 2001 to
       November 2003. The Show Cause Notice in this case was issued on
       29.12.2005 and sought to invoke the extended period of limitation by
       making similar allegations as in Civil Appeal No. 6033 of 2009. The
 B
       order impugned in this appeal, however is an order dated 4.4.2010 of the
       Gujarat High Court by which the Court had dismissed an appeal filed by
       the revenue against an order of CESTAT, by holding that no question of
       law could be stated to arise from the order of CESTAT. Our conclusions
       with regard to Civil Appeal 6033 of 2009 apply equally to this appeal. In
 C     the result both the appeals filed by the Revenue are dismissed on the
       ground that the demands are time barred. We make it clear that we
       express no opinion on the merits of the matter including the aspects of
       revenue neutrality.


 D     Nidhi Jain                                               Appeals dismissed.
       (Assisted by : Tamana, LCRA)




 E




 F




 G




 H