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TMI Blog2008 (9) TMI 604X X X X Extracts X X X X X X X X Extracts X X X X ..... notice dated 7-7-1994 was issued raising demand of duty for the year 1991-92 and upto 24th July of 1992 of the year 1992-93 on the ground that the manufacturer was not entitled to small scale exemption benefit of notification dated 20-5-1988. 2. During the adjudication proceeding, the manufacturer contested the matter on merit as also on the point of limitation. The demand of duty was confirmed by the Commissioner of Central Excise vide its order dated 2-9-1996. The manufacturer carried the matter in appeal before the Customs Excise & Gold (Control) Appellate Tribunal, hereinafter referred to as the 'Tribunal'. The Tribunal allowed the appeal and while doing so, it observed as follows : "xxx It is well settled that misclassifyin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Excise Rules, it was obligatory on part of the manufacturer to get the return cleared by the Assistant Collector of Central Excise and admittedly, it had not done so and got it cleared by an incompetent authority, i.e. the Superintendent and therefore, it had acted in contravention of the provisions of the Rules and as such, action in terms of Section 11(A) of the Central Excise Act was possible to be taken within five years. 5. Mr. Satyabir Bharti, learned counsel appearing on behalf of the manufacturer, however, contends that suppression of any fact or contravention of the provisions of the Rules itself does not extend the period to five years so as to entitle the authority to proceed in the matter within the extended pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 "six months", the word "five years" were substituted." 7. From a plain reading of Section 11A of the Act, it is evident that Central Excise Officer within six months serve notice on the person chargeable for payment of duty or short payment of duty etc. but in case of non-levy or shot levy of any account of an act to evade payment of duty, proviso extends the period to five years. In this case, notice has been given beyond the period of six months and therefore one has to see as to whether the case shall be covered under the proviso and the extended period of five years is available to the Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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