TMI Blog2010 (7) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... nalyst which made them to believe that the product of the respondent is not an 'ore' but a 'concentrate' - Appeal is dismissed - 28 of 2009 - - - Dated:- 28-7-2010 - J. Chelameswar, C.J. and P.N. Ravindran, J. Shri E.K. Nandakumar, for the Respondent. [Judgment per : J. Chelameswar, C.J.]. - This is an appeal by the Revenue under Section 130 of the Customs Act, 1962 aggrieved by an order in Appeal No. Excise/840/04 on the file of the Customs, Excise Service Tax Appellate Tribunal, South Zonal Bench, Bangalore. 2. The respondent Company is carrying on the activity of manufacture of Synthetic Rutile and Ferric Chloride. During the years 1996-97, 1997-98 and 1998-99 the respondent Company cleared 1003.75 Metric Tons of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the relevant period indicated in the Page 3 of 10 - said order along with interest and penalty also. 4. Aggrieved by the said decision, the respondent carried the matter in appeal to the Customs, Excise Service Tax Appellate Tribunal. The Tribunal by the order under appeal dated 30th June, 2006 allowed the appeal of the respondent holding in substance that the extended period of limitation provided under the proviso to Section 11A(1) of the Central Excise Act could not have been invoked by the appellant in the facts and circumstances of the case. However, the Tribunal opined that the demand of tax prior to 12-10-1998 (the date of the show cause notice) has to be redetermined by the adjudicating authority whereas the demand fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble 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 should not pay the amount specified in the notice : 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 wilful 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, by such person or his agent, the provisions of this sub-section shall have effect, as if for the words "one year", the words "five years" were substituted : Explanation. - Wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... menite including limenite ground) kg. 10% --- Rutile : 2614 00 31 ---- Rare earth oxides including rutile sand kg. 10% 2614 00 39 ---- Other kg. 10% 2614 00 90 ---- Other kg. 10%" 9. It can be noticed from the above, that Rutile is also part of the Chapter. Though the Chapter deals with both ores and concentrates, neither of the expressions is defined under the Act. According to the learned counsel for the appellant, the distinction between ores and concentrates depends upon the chemical composition of the material. As a matter of fact, in the instant case, when recovery proceedings were initiated aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e equated with a willful misstatement. The latter implies making of an incorrect statement with the knowledge that the statement was not correct." Similarly, in Nestle India Ltd. v. Commissioner of Central Excise, Chandigarh [2009 (235) E.L.T. 577 (S.C.)], at paragraph 17, the Supreme Court considered the question as to when the extended period of limitation is invokable and held as follows : "17. On the question as to whether the Department was entitled to invoke the extended period of limitation, we are in agreement with the view expressed by the Tribunal that the extended period of limitation was not invokable in this case for two reasons. Firstly, the assessee has been clearing the said intermixture of vitamins for last more t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... An examination of the above three judgments makes it abundantly clear that it is not in every case where there is short levy or short payment or non levy, etc. that the extended period of limitation is made available to the department for recovery of the amount of tax which escaped assessment. It is only in those cases where there is wilful and deliberate suppression of the fact, such extended period of limitation is available to the department. An 'element of deception or malpractice' is a necessary concomitant of wilful and deliberate suppression of fact. The Supreme Court also opined that in order to invoke the extended period of limitation under the proviso to Section 11A(1) of the Act, there must be some positive act other than ..... X X X X Extracts X X X X X X X X Extracts X X X X
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