TMI Blog2017 (8) TMI 1048X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is the requirement under the Standards of Weights and Measures Act would not attract the Chapter Note - decided in favor of petitioner. Whether the respondent is justified in invoking the extended period of limitation? - Section 11A of the Act - Held that: - there is no specific allegation of fraud made out by the second respondent at the time of issuance of the show cause notice. The allegation is that non-intimation of activities to the department, which according to the respondent, amounts to suppression. However, to invoke the extended period of limitation, something more is required to be on record and the statute mandates the same which has been explained in the aforementioned decisions. Thus, it is a clear case where the extended period of limitation could not have been invoked under the facts and circumstances of the case - decided in favor of petitioner. Petition allowed - decided in favor of petitioner. - W. P. No. 31663 of 2003 - - - Dated:- 9-8-2017 - T. S. Sivagnanam, J. For the Petitioner : Mr. Sivam Sivanandraj For the Respondents : Mr. A. P. Srinivas, SPC ORDER The petitioner engaged in importing and marketing of biscuits has approache ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and marketed by the petitioner, the Maximum Retail Price (MRP) and Month of Import. According to the petitioner, they were required to do so to comply with the statutory obligation under the Standards of Weights and Measures Act, 1976, and under the Prevention of Food Adulteration Act. 5. The respondent issued a show cause notice dated 01.05.2002 by referring to Note 3, Chapter 19 of the Central Excise Tariff Act, 1985, and that labeling or relabeling of containers and repacking from bulk packs to retail packs or the adoption of any other treatment to render the product marketable to the consumer, of products of the said chapter, shall amount to manufacture. According to the respondent, the activity of affixing the label mentioning the Maximum Retail Price (MRP) as per the Standards of Weights and Measures Act, 1976, at the time of sale by affixing it in the premises of the petitioner amount to be manufacture. The second respondent further alleged that the petitioner had not intimated the activity of labeling their products to the department nor had taken out the registration nor followed the procedures prescribed under the Act and Rules and therefore, it appears to be an act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Hon'ble Apex Court in CCE, Mumbai Vs. Johnson and Johnson Limited reported in MANU/SC/2757/2005. In the said case, the product, which was involved, was imported medicines and the department took a stand as identical to that of the case on hand that labeling or relabeling would amount to manufacture. In this regard, revenue placed reliance on Note 5 of Chapter 30 of the Central Excise Tariff Act which is in paramateria to Note 3 of Chapter 19 of the Central Excise Tariff Act. The Hon'ble Supreme Court held that affixing stickers containing information like names and address of the importers, maximum retail price, net weight etc. cannot be termed as manufacture as contained in Chapter Note 3 in Chapters 18 and 19 of the Central Excise Tariff Act. 11. Recently, in the case of Servo-Med Industries Private Limited v. Commissioner of Central Excise, Mumbai [(2015) 14 SCC 47], the Hon'ble Supreme Court summarized the principles and held as follows: 27. The case law discussed above falls into four neat categories. (1) Where the goods remain exactly the same even after a particular process, there is obviously no manufacture involved. Processes whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, for any reason, other than the reason of fraud or collusion or any willful mis-statement 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, the Central Excise Officer shall, within one year from the relevant date, serve notice on the person chargeable with the duty which has not been so levied or paid or which has been so short-levied or short-paid, requiring him to show cause why he should not pay the amount specified in the notice. Under sub-section 4 of Section 11A, power has been given to recover the duty where any one of the circumstances set out therein are attracted and the period of limitation is five years. This is commonly known as extended period of limitation. For better appreciation, relevant provision is quoted below: Section 11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded.- (1) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the activities of the appellant were not known to it. 15. In the case of Commissioner of Central Excise Vs. Supreme Industries Limited [(2014) 303 ELT 513], the Division Bench of this Court considered as to when the provisions of Section 11-AC of the Act would stand attractive and held as follows: 9. The Hon'ble Supreme Court in the case of Union of India vs. Rajasthan Spinning and Weaving Mills (supra) pointed out that the decision in the case of Union of India vs. Dharmendra Textile Processors reported in (2008) 13 SCC 369, cannot be said to hold that Section 11AC of the Act would apply to every case of non-payment or short payment of duty regardless of the conditions expressly mentioned in Section 11AC for its application. It was further pointed out that the decision in the case of Dharmendra Textile Processors(supra) must be understood to mean that though the application of Section 11AC would depend upon the existence or otherwise of the conditions expressly stated in the Section, once the Section is applicable in a case, the authority concerned would have no discretion in quantifying the amount and penalty must be imposed equal to duty determined under sub ..... X X X X Extracts X X X X X X X X Extracts X X X X
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