TMI Blog1985 (10) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... arch, 1979 to April, 1983 without payment of duty, in terms of Rule 9(2) read with Section 11A of the Central Excises Salt Act. 1944, is maintainable because it encompasses a period longer than six months from the date of demand, and whether the order being that of the Collector is in conformity with the provisions of Section 11A at all. 2. It is accepted that brake drums are liable to duty under Item 68 of the Central Excise Tariff with effect from 1-3-79 because of the changes brought about by the Budget of 1979. It is also not disputed that goods have been cleared without payment of the duty leviable under that Item. 3. The learned Advocate for the appellant urged that there can be no demand without a process of assessment and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was therefore, urged that suppression should also be given the same meaning and be equated to wilful non-disclosure. A general reference was made to the exposition of this doctrine in Maxwell on The Interpretation of Statutes (12th Edition) at page 292. A reading of the order would show that the Collector refers only to contravention of the provisions of the Act. There is no reference to any intent to evade payment of duty on the part of the appellant; so even if Section 11 A is to be applied, only the last part regarding contravention of the provisions of the Act or the Rules with intent to evade payment of duty should alone apply to the facts of this case; hence, the demand for a period of five years will be hit by limitation. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guity in the language of a provision of law. There is no ambiguity in the wording of Section 11 A; Suppression is a clear word about which there can be no two views. The changes were brought about by the Budget. The contents of Budget are very widely published in all the media. An appellant of the status of Cheran Engineering Corporation cannot plead that they were not aware of the budgetary changes if proper care had been exercised. 8. The learned SDR observed that the order of the Collector does not invoke Section 11 A but is one under Rule 9(2). So the submissions in regard to Section 11 A will have no direct validity. In regard to the extended period the case of Mac Laboratories has been cited. He pointed out that that was a case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mis-statement or suppression of facts occurring in the proviso to Rule 10 after the word Fraud falls within the ambit of part (i) and (ii) in the definition of fraud in the Contract Act. 11. We have considered the submissions of both sides. The charge in the show cause notice is one of clearance of goods from March, 1979 to April, 1983 without payment of duty and hence contravention of Rules 9(1), 52A, 226 173G of the Central Excise Rules, 1944 and the party was called upon to show cause why duty should not be recovered in terms of Rules 9(2) and 173Q read with Sec. 11A of the Act and why a penalty should not be imposed under Rules 9(2), 52A, 210 and 173Q of the Central Excise Rules, 1944. Eventually the Collector dropped the que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is no doubt a reference to Section 11A in Rule 9 but that reference is for the limited purpose of specifying the period within which a demand can be made even under Rule 9(2) in ordinary cases, it will be six months from the relevant date as defined in Section 11A and in case of suppression etc., it will be five years. This is a far cry from the proposition that the power exercised under Rule 9(2) is in fact one exercised under Section 11A. 12. We do not find any merit in the argument that the show cause notice does not invoke the longer time limit. A reading of the notice shows that it has set out the following facts :- (i) The appellants have manufactured and cleared excisable goods automotive brake drums - between 1-3-1979 and 12- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t one. 14. We now turn to whether there has been suppression of facts which would enable the Department to make a demand for a period of five years from the date of the demand rather than for a period of six months. The rule of noscitur a sociis would not seem to be relevant in the context of the words occurring in Section 11A (as applicable to Rule 9). As aptly pointed out by a Bench of this Tribunal in Shriram Pistons and Rings case - 1983 E.L.T. 1927 - the term fraud as defined in Section 17 of the Contract Act would encompass both wilful statement and suppression of facts; if therefore, one were to go by the definition of fraud as occurring in the Indian Contract Act, 1872, there would be no need for reference to the other phras ..... X X X X Extracts X X X X X X X X Extracts X X X X
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