TMI Blog2010 (4) TMI 631X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of section 11A of the Act and as such cannot be sustained - suppression stands admitted by the respondent assessee and established by evidence on record and as a natural corollary, the proviso to sub-section (1) of section 11A would stand attracted. In the circumstances, the impugned order of the Tribunal whereby it has been held that the show cause notice issued beyond the period of six months from the date of knowledge is barred by limitation is clearly contrary to the provisions of section 11A of the Act and as such cannot be sustained. - 338 of 2009 - - - Dated:- 22-4-2010 - D.A. Mehta and H.N. Devani, JJ. REPRESENTED BY: Shri R.J. Oza, Sr. Standing Counsel, for the Appellant. Shri Paresh M. Dave, for the Respondent. [Order per: H.N. Devani, J. (Oral)]. - The Appellant-Revenue has challenged order dated 26.08.2008 made by the Customs, Excise And Service Tax Appellate Tribunal (the Tribunal), proposing the following three questions: (a) Whether in the facts and circumstances of this case, the date of completion of investigation has any bearing in deciding period of limitation to issue show cause notice in case covered by first proviso to Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tements of the merchant manufacturers from whom the short found Grey fabrics were received and resultant processed fabrics cleared without cover of Central Excise invoices and without payment of Central Excise duty also came to be recorded, who admitted that the Grey fabrics were sent for process illicitly without payment of duty. 7. Subsequently a Show Cause Notice dated 09.05.2009 came to be issued to the respondent unit which came to be adjudicated vide order-in-original dated 22.2.2006 whereby demand of central excise duty amounting to Rs.4,01,693/- came to be confirmed with interest under section 11AB of the Act. Penalty of Rs.4,01,693/- was also imposed under section 11 AC of the Act read with Rule 25 of the Central Excise Rules, 2002 (the Rules). The respondent carried the matter in appeal before Commissioner (Appeals), who for the reasons stated in her order dated 25.02.2008, dismissed the appeal. The respondent carried the matter in further appeal before the Tribunal, who vide the impugned order allowed the appeal on the ground of limitation. 8. Assailing the impugned order of the Tribunal Mr. R.J. Oza, learned Senior Standing Counsel for the appellant-revenue has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. It is further held that once show cause notice was beyond the extended period of limitation, any reference to date of acquiring knowledge has no relevance. It is pointed out that the said decision of the Tribunal was carried before the Supreme Court in the case of Nizam Sugar Factory (supra) and that the impugned orders of the Tribunal had been set aside on the question of limitation only. It is further submitted that the impugned order of the Tribunal is also in consonance with the decision of this Court in case of Commissioner of Central Excise And Customs Vs. Kwality Tube Industries, 2009 (240) E.L.T.20 (Guj.). It is submitted that in the circumstances, the impugned order of the Tribunal is just, legal, proper and does not warrant interference. 10. Section 11A of the Central Excise Act, 1944 in so far as the same is relevant for the present purpose reads thus: "11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. - (1) When any duty of excise has not been levied or paid or 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the final assessment thereof; (c) in the case of excisable goods on which duty of excise has been erroneously refunded, the date of such refund. 11. A plain reading of sub-section (1) of section 11A of the Act indicates that the provision is applicable in a case where any duty of excise has either not been levied/paid or has been short levied/short paid, or wrongly refunded, regardless of the fact that such non levy etc. is on the basis of any approval, acceptance or assessment relating to the rate of duty or valuation under any of the provisions of the Act or Rules thereunder and at that stage it would be open to the Central Excise Officer, in exercise of his discretion to serve the show cause notice on the person chargeable to such duty within one year from the relevant date. 12. The Proviso under the said sub-section stipulates that in case of such non levy, etc. of duty which is by reason of fraud, collusion, or any mis-statement or suppression of facts, or contravention of any provisions of the Act or the rules made thereunder, the provisions of sub-section (1) of section 11A of the Act shall have effect as if the words one year have been substituted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal also cannot be permitted in law when the statute itself has provided for a fixed period of limitation. It is equally well settled that it is not open to the Court while reading a provision to either rewrite the period of limitation or curtail the prescribed period of limitation. 18. The Proviso comes into play only when suppression etc. is established or stands admitted. It would differ from a case where fraud, etc. are merely alleged and are disputed by an assessee. Hence, by no stretch of imagination the concept of knowledge can be read into the provisions because that would tantamount to rendering the defined term relevant date nugatory and such an interpretation is not permissible. 19. The language employed in the proviso to sub-section (1) of section 11A, is clear and unambiguous and makes it abundantly clear that moment there is non-levy or short levy etc. of central excise duty with intention to evade payment of duty for any of the reasons specified thereunder, the proviso would come into operation and the period of limitation would stand extended from one year to five years. This is the only requirement of the provision. Once it is found that the ingredie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y then the Revenue can give notice for recovery of the duty to the person in default within one year from the relevant date (defined in sub-section 3). In other words, in the absence of any element of deception or malpractice the recovery of duty can only be for a period not exceeding one year. But in case the non-payment etc. of duty is intentional and by adopting any means as indicated in the proviso then the period of notice and a priory the period for which duty can be demanded gets extended to five years. 23. This decision would be applicable on all fours to the facts of the present case, viz. when non-payment etc. of duty is intentional and by adopting any of the means indicated in the proviso, then the period of notice gets extended to five years. 24. The decision of the Apex Court in the case of Nizam Sugar Factory (supra) on which reliance has been placed upon by learned advocate for the respondent was rendered in totally different set of facts wherein when the first show cause notice was issued all the relevant facts were in the knowledge of the authorities. The Court has held that later on, while issuing the second and third show cause notices the same/similar fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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