TMI Blog2003 (3) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... ntent of the impugned notice issued to find out whether it is severable as contended by the learned Counsel, time was granted to the Revenue to produce a copy thereof. In spite of the fact that a period of about eleven months has elapsed from the last date of hearing, a copy of the notice has not been produced. A perusal of the order of the Collector shows that he recorded the finding of suppression of fact. Even for shorter period notice based on the grounds contained in the proviso could be issued only by the Collector, therefore, the contention to treat the show cause notice for shorter period of six months cannot be accepted. Appeal dismissed. - 4230-4231 of 1996 - - - Dated:- 12-3-2003 - Syed Shah Mohammed Quadri and Ashok Bhan, JJ. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llector upholding the validity of the said show cause notice dated March 6, 1986 was assailed before the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi (for short, 'the Tribunal'). On March 25, 1991, the Tribunal, by majority, held the show cause notice to be invalid. It is from that order of the Tribunal that the present appeals have arisen. 3.Mr. T.L.V. Iyer, learned Senior Counsel appearing for the appellant-Revenue, contends that even if the notice is held to be invalid for the extended period under the proviso, it has to be treated as valid for the shorter period of six months. 4.To appreciate the contention of the learned Counsel, it will be useful to read Section 11A of the Act as it stood at the mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Officer is empowered to issue notice to the person chargeable with the duty of excise which has not been levied or paid or has been short-levied or short-paid or erroneously refunded within six months from the relevant dated requiring him to show cause why he should not pay the amount specified in the notice. The proviso enables the Collector of Central Excise to issue such a notice in respect of a period of five years instead of six months, if the non-levy or non-payment or short-levy or short-payment or erroneous refund was by reason of fraud, collusion or any wilful mis-statement or suppression of facts or contravention of any of the provisions of the Act or the Rules made thereunder with an intent to evade payment of dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted to the Revenue to produce a copy thereof. In spite of the fact that a period of about eleven months has elapsed from the last date of hearing, a copy of the notice has not been produced. A perusal of the order of the Collector shows that he recorded the finding of suppression of fact. Even for shorter period notice based on the grounds contained in the proviso could be issued only by the Collector, therefore, the contention to treat the show cause notice for shorter period of six months cannot be accepted. This point was considered by a throe-Judge Bench of this Court in the case of Collector of Central Excise, New Delhi v. M/s. Frick India Limited in Civil Appeal Nos. 4421-4422 of 2000 on December 14, 2000 wherein the judgment in Oil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... below :- 'Where the non-levy, short levy, erroneous refund etc. is due to fraud, collusion etc. the case will fail in the proviso to Section 11A(1) and not in main sub-section (1) of Section 11A. The period of limitation and the authority competent to issue the notice will be the ones provides in the proviso. If fraud etc. is the ground for issue of notice, the Competent Authority to issue such a notice would be the Collector of Central Excise irrespective of the fact, whether the notice is issued within six months or thereafter.' The3. Board has accepted the aforesaid opinion of the Law Ministry. Action in such matters may be taken in accordance with the said Law Ministry's opinion. 9.A perusal of the above-mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
