TMI Blog2011 (6) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... e availing credit. - 4 of 2006 - - - Dated:- 22-6-2011 - S.A. Bobde and F.M. Reis, JJ C.A. Ferreira, Assistant Solicitor General for the Appellant H.K. Maingi, Adv., for the Respondent JUDGEMENT S.A. Bobde: Mr. Ferreira, learned Assistant Solicitor General for the appellant, seeks leave to amend the appeal. Leave granted. Amendment to be carried out forthwith. 2. Heard learned Counsel for the parties. 3. This appeal by the Commissioner of Central Excise questions the order dated 27-09-2005, by which the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), has upheld the order of the Commissioner that the claim of the Revenue is time barred. 4. A Show cause notice dated 10-02-1999 was issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 57,775/-, under (b) above. 7. The Commissioner (Appeals-II), Central Excise and Customs, in the appeal, upheld the order of the Additional Commissioner of Customs, to inadmissibility of the credit and held that the show cause notice was barred by limitation. 8. The second appeal preferred by the appellant was dismissed by the CESTAT and hence this appeal. 9. Mr. Ferreira, learned Assistant Solicitor General for the appellant, submitted that wrongful claims were made by the assessee for which notice was issued after a period of four years on 10-02-1999. The show cause notice itself cannot be held to be barred by limitation in view of the provision of Section 11A of the Central Excise Act, 1944 which reads thus: "Section 11A.- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said period of [one year] or five years, as the case may be. (1A) When 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 misstatement or suppression of facts, or contravention of any of the provisions of this Act or the rules made thereunder with intent to evade payment of duty, by such person or his agent, to whom a notice is served under the proviso to sub-section (1) by the Central Excise Officer, may pay duty in full or in part as may be accepted by him, and the interest payable thereon under section 11AB and penalty equal to twenty-five per cent of the duty specified in the notice or the duty so accepted by such person within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usly refunded, if there is 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. The extended period so provided is of five years instead of six months. Since the proviso extends the period of limitation from six months to five years, it needs to be construed strictly. The initial burden is on the department to prove that the situation visualized by the proviso existed. But the burden shifts on the assessee once the department is able to produce material to show that the appellant is guilty of any of those situations visualized in the Section." 11. Having regard to the ratio of the decision supra, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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