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Shri Dharampal Lalchand Chug Carrying on business in the name and style of M/s. Vibha Impex, Shri Kamal Lalchand Chug (M/s. Jannat Fabrics) Versus Commissioner of Central Excise

2015 (7) TMI 957 - BOMBAY HIGH COURT

Invocation of extended period of limitation - determination of relevant date for issue of notice within 5 years - Duty demand u/s 11A - Held that:- If the goods and which are excisable have to be cleared on payment of duty, but if they are exempted from payment of such duty, it does not mean that there is no power in the authorities to verify and scrutinise the documents based on which the clearance is made. One of the documents at the stage of clearance refers to the Exemption Notification and .....

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ase of this nature or that the period of five years prescribed would have to be computed only when the breach or violation of the Exemption Notification has come to the knowledge of the Department subsequently. It may be that such fact is discovered or comes to the knowledge of the authorities subsequent to the clearance, however, when the Department desires to recover the amount of duty, then, it must adhere to the period prescribed

By section 5 remission of duty on goods found defic .....

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lly, if there is any condition to furnish a Bond and in that behalf it is prescribed that in the event the terms and conditions on which the bond has been given and accepted are breached and violated, a demand can be raised, that that stipulation will not mean that the mandate of section 11A is any way diluted or can be interpreted with the aid of such term or condition of the Bond. Thus, the terms and conditions of the Exemption Notification or of the Bond cannot be of any assistance. That only .....

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of the statute or the words of the section cannot be brushed aside or ignored.

In the light of the clear language of the Statute the Hon'ble Supreme Court arrived at somewhat similar conclusion. In the case of Ahmedabad Manufacturing and Calico Printing Co., Ltd. (supra) the Hon'ble Supreme Court concluded that the mistake can be corrected but the tax can be recovered in the light of the provisions enabling such recovery and in that case, it was held that if the language of the law .....

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in the said period, else there is a fetter or restriction to recover the duty.

Tribunal's order is ex-facie erroneous and unsustainable in law. It is vitiated by complete non application of mind as well. That the fraud is of great magnitude and that involvement or the act is admitted does not mean that recovery of duty because of such fraud or as a result of it can be made at any time under section 11A. This was clearly lost sight of by the Tribunal. We do not find that this approach .....

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ese Central Excise Appeals raise common questions and therefore were heard together. They can be conveniently disposed of by a common Judgment. The Appeals arise out of final orders passed by the Customs, Excise and Service Tax Appellate Tribunal, Bench at Mumbai dated 3rd July, 2013. 2) The Appeals raise the following substantial questions of law: (a) Whether under the facts and circumstances, the Appellate Tribunal erred in confirming demand for period even beyond extended period of limitation .....

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he Appellant in Appeal No. 96 of 2014 is a sole proprietor carrying on business in the name and style of M/s. Vibha Impex and claims that it is a 100% Export Oriented Unit (EOU). The factory was earlier located at Malegaon and later on it shifted to another village but within the same district, namely, Nashik. The Appellant is engaged in the manufacturing of various types of Polyester Yarn and Fabrics falling under Chapter 54 of the First Schedule to the Central Excise Tariff Act, 1985. The Appe .....

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permission on 9th November, 2001. The annual capacity for manufacture of yarn and fabrics was estimated at 3048.64 metric tons and 33,60,000 meters respectively. The Appellant also executed and submitted a letter of undertaking dated 26th March, 2002 in order to comply with the terms of the permission. The Appellant also obtained a Customs licence dated 28th January, 2002. The Appellant also executed a Bond in the sum of ₹ 80 lacs with the Deputy Commissioner of Central Excise and Customs .....

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ut a search of the Appellant's factory premises. In the course of the same, the Central Excise Department seized various documents for scrutiny under a panchanama drawn on 10th October, 2002. In the course of the search, the Central Excise Department alleged that the Appellant installed certain machines and there was a short payment of duty amounting to ₹ 94,498/. There are shortages noticed in the manufacture of Polyester Yarn. The Appellant paid a short payment of duty by Challan dat .....

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every step of the above nature eventually led to issuance of show cause notice dated 27th November, 2009. That notice proposed to recover Central Excise Duty amounting to ₹ 2,73,41,250/for alleged diversion of inputs (Yarn), during the period April, 2002 procured without payment of duty under CT3 procedure. The diversion into local domestic market is in utter violation of the terms and conditions of the Notification No. 1/95CE dated 4th January, 1995 and the conditions of B17 Bond executed .....

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, 1944. 7) This plea was specifically raised in the reply to the show cause notice by the Appellant. It was argued that the disputed period is April, 2002 to January, 2003. However, the show cause notice is dated 27th November, 2009. Therefore, even the extended period of five years is over. The show cause notice is issued after a long gap of six years. In the circumstances, the demand is time barred. 8) In dealing with such contentions, we find that the Tribunal referred to the allegations in t .....

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f the decisions relied upon by the Appellant therefore will be of any assistance. The Tribunal concluded that as the Appellants are not disputing the demands on merits before the adjudicating authority nor in the present Appeals, there is no substance in their contention that the demands are time barred. Concluding thus, the Appeals were dismissed. In the order in original as well, the adjudicating authority concluded that the demand is not time barred. The adjudicating authority found that the .....

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conclusion of the authorities and submitted that there is a error of law and apparent on the face of the record. Both, the adjudicating authority and the Tribunal lost sight of the fact that if there is a violation or breach of the condition of the Exemption Notification, whereby the duty demand arises and if that is not honoured, then, recovery proceedings can be initiated, but for that, there is a clear provision in the Central Excise Act, 1944. That provision ordinarily allows recovery of all .....

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en any duty of excise has not been levied or paid or has been short levied or paid or erroneously refunded by reason of fraud, collusion or any willful misstatement 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, sub section (1) will have effect and for the words one year the words five years ought to be substituted. The Explanation in this case, according to Mr. Sridha .....

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the date on which duty is to be paid under the Act or rules made thereunder. This provision has a direct nexus or connection with the date of payment and as postulated by the Act and the Rules. In the circumstances, the demand raised in the present case is ex-facie time barred. Mr. Sridharan would submit that the concept of cause of action has been erroneously read in these provisions. The legislature has circumscribed and restricted the operation of this section. Mr. Sridharan has invited our a .....

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e clause therefore was amended accordingly. The proposal was that there shall be no time limit for issuance of notice of recovery in the cases noted above. 10) Mr. Sridharan submits that the understanding of the Tribunal in confirming the order of the adjudicating authority therefore would mean reading into the provision something which is not specifically there. Mr. Sridharan has invited our attention to the decisions relied upon by the Tribunal as also the adjudicating authority. He submits th .....

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on of fraud would be the starting point. In the circumstances, according to Mr. Sridharan, the impugned orders deserve to be quashed and set aside. 11) Reliance is placed upon the Judgments of the Hon'ble Supreme Court of India, which have been interpreting section 11A. The principal amongst them are Judgments in the case of J. K. Spg and Wvg Mills Ltd. vs. Union of India reported in 1987(32) ELT 234, Ahmedabad Manufacturing and Calico Printing Co., Ltd. v. S.G. Mehta, reported in (1963) 48 .....

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nd 5A of the said Act should be read together. Reading of the same would disclose as to how, when there is Exemption Notification, the law postulates a inquiry into the violation or breach of the conditions upon which the exemption has been granted. If the breach or violation of the conditions of the Notification has to be probed and investigated, then, the duty liability would occur only after such probe or inquiry is complete. It is only thereafter that the fraud or willful suppression would c .....

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.Pakale has pointed out that in the present case (CEXA/182/2014), the unit M/s. Jannat Fabrics claims to be a 100% EOU. Mr. Pakale submits that it was the intimation from the Development Commissioner on 28th December, 2006 which triggered the inquiry or investigation. There is an admission of the proprietor in his deposition dated 6th December, 2009 that Polyester Yarn has not been utilised or used in the manufacture of export goods. Therefore, the amount became payable under the provisions of t .....

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owledge of Revenue only during investigation. Once the conditions of the Exemption Notification are not complied with then, the benefit of that Notification becomes unavailable. Then, the demand can be raised. In the present case, there is therefore no time limit. The provisions of section 11A of the Central Excise Act, 1944, in any event, would have to be construed and interpreted in this light. 13) Apart from the case of M/s. Kalvert Foods India Pvt. Ltd. (supra), reliance is placed upon a Jud .....

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in the light of the relevant statutory provisions is the submission. Mr. Pakale has also invited our attention to the compilation which was tendered by Mr. Sridharan and particularly the Central Excise Rules. Mr. Pakale submits that the language of the Rules would enable in this case to determine the time and manner of payment of duty. In the present case, Mr. Pakale would submit that this being a case of fraud, the law laid down in the case of S. P. Chengalvaraya Naidu vs. Jagannath reported i .....

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ise 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 refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisesable goods under any other provisions of this Act or the rules made thereunder, a Central Excise Officer may, within one year from the relevant date, serve notice on the person .....

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s Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this subsection shall have effect, as if, for the words one year, the words five years were substituted: Provided further that where the amount of duty which has not been levied or paid or has been short-levied or short-paid or erroneously refunded is one crore rupees or less a notice under this subsection shall be served by the Commissioner of Central Excise or with his pri .....

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year or five years, as the case may be. (2) The Central Excise Officer shall, after considering the representation, if any, made by the person on whom notice is served under subsection (1), determine the amount of duty of excise due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. (2A) Where any notice has been served on a person under subsection (1), the Central Excise Officer ( a) in case any duty of exc .....

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xcise which has not been levied or paid or has been short-levied or short-paid or erroneously refunded, within a period of six months; from the date of service of the notice on the person under subsection (1). (2B) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person, chargeable with the duty, may pay the amount of duty before service of notice on him under subsection (1) in respect of the duty, and inform the Central Exc .....

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from the date of receipt of such information of payment. Explanation 1. Nothing contained in this subsection shall apply in a case where the duty was not levied or was not paid or was short-levied or was short-paid or was 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 of the rules made Therer-under with intent to evade payment of duty. Explanation 2. For the removal of doubts, it is h .....

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ection, ( i) refund includes rebate of duty or excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (ii) relevant date means; ( a) in the case of excisable goods on which duty of excise has not been levied or paid or has been short-levied or short-paid ( A) where under the rules made under this Act a periodical return, showing particulars of the duty paid on the excisable goods removed during the period to whi .....

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eunder, the date of adjustment of duty 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. 15) A perusal of the above section would reveal that the same confers powers for recovery of duty not levied or not paid or short levied or short paid or erroneously refunded. Sub section (1) clarifies that when any duty of excise has not been levied or paid or has been short levied or short paid or erroneous .....

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evied or short paid or to whom the refund has erroneously been made, requiring him to show cause as to why he should not pay the amount specified in the notice. It is stated in the first proviso 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 misstatement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to e .....

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all be served without the prior approval of the Chief Commissioner of Central Excise. The Explanation has no application to the present case. Various sub sections of this provision enable recovery of the amount after sub section (1) is complied with. Sub section (2A) enables determination of the amount of the duty within a period of one year in cases of fraud etc., whereas in other case it has to be within a period of six months. By sub section (2B), the person chargeable with the duty may pay t .....

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e Officer shall proceed to recover such amount in the manner specified in this section, and the period of one year referred to in subsection (1) shall be counted from the date of receipt of such information of payment. Explanation 1 to sub section (2B) reads as under: Explanation 1. Nothing contained in this subsection shall apply in a case where the duty was not levied or was not paid or was short-levied or was short-paid or was erroneously refunded by reason of fraud, collusion or any wilful m .....

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y had become payable or ought to have been paid before the date on which the Finance Bill, 2001 receives the assent of the President. For the purpose of section 11A, the term relevant date has been defined. Thus, a perusal of this section and carefully would denote that it enables recovery of duty not levied or not paid or short levied or short paid or erroneously refunded. The recovery is after issuance of a show cause notice within the meaning of sub section (1). The issuance of the show cause .....

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removed during the period to which the said return relates, is to be filed by a manufacturer or a producer or a licensee of a warehouse, as the case may be, the date on which such return is so filed. Where no periodical return as aforesaid is filed, the last date on which such return is to be filed under the said rules and in any other case, the date on which the duty is to be paid under this Act or the rules made thereunder. 17) It is not necessary to decide any wider controversy or larger que .....

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ore than one reason. 18) If the goods and which are excisable have to be cleared on payment of duty, but if they are exempted from payment of such duty, it does not mean that there is no power in the authorities to verify and scrutinise the documents based on which the clearance is made. One of the documents at the stage of clearance refers to the Exemption Notification and thereafter the person clearing the goods or removing them urges that there is no duty liability, then, what terms and condi .....

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clusion. Further, the terms and conditions of the Exemption Notification and the Bond would indicate as to how it is possible to ensure compliance of law at various stages. Thus, the Rules and Rule 173G(2A) read with the proviso thereto would indicate as to how goods which are exempted have to be removed and cleared. However, Mr. Pakale's reliance on para (d) of the Exemption Notification No. 54 and the Form B17 (General Surety/Security) is entirely misplaced. By recourse to that, the period .....

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epartment subsequently. It may be that such fact is discovered or comes to the knowledge of the authorities subsequent to the clearance, however, when the Department desires to recover the amount of duty, then, it must adhere to the period prescribed. If the period is prescribed of five years and that has to be computed from the relevant date, then, we cannot read into this definition of the words relevant date something more as urged by Mr. Pakale. His argument that date on which the duty is to .....

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he same specifies the duties in the Schedule to the Central Excise Tariff Act, 1985 to be levied. Sub section (1) thereof provides that there shall be levied and collected in such manner as may be prescribed a duty of excise to be called the Central Value Added Tax on all excisable goods (excluding goods produced or manufactured in special economic zones) which are produced or manufactured in India as and at the rates set forth in the First Schedule to the Central Excise Tariff Act, 1985 and a s .....

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of excisable goods for purposes of charging of duty of excise is dealt with. There, one would find the definition of the term 'assessee' and it is clearly stated that where under this Act, the duty of excise is chargeable on any excisable goods with reference to their value, then, on each removal of the goods, such value shall in a case where the goods are sold by the assessee, for delivery at the time and place of removal, the assessee and the buyer of goods are not related and the pric .....

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r absolutely or subject to such conditions (to be fulfilled before or after removal) as may be specified in the notification, excisable goods of any specified description from the whole or any part of the duty of excise leviable thereon. 19) The Assessing Officer merely assessees and recovers the duty on the goods and when they are removed. Therefore, the Assessing Officer and who is obliged to ensure compliance of the terms and conditions of the Notification, if the Notification is claimed in t .....

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conferred by section 11A. In these circumstances, neither of these provisions nor their interpretation as suggested would be of any assistance to Mr. Pakale. 20) Equally, if there is any condition to furnish a Bond and in that behalf it is prescribed that in the event the terms and conditions on which the bond has been given and accepted are breached and violated, a demand can be raised, that that stipulation will not mean that the mandate of section 11A is any way diluted or can be interpreted .....

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he period of five years, then, section 11A will have to be interpreted accordingly is the express stand and which we find cannot be accepted because the plain language of the statute or the words of the section cannot be brushed aside or ignored. We find that the words being such and therefore we cannot accept this contention of Mr. Pakale. In submitting as above, Mr. Pakale ignores the Judgment of the Hon'ble Supreme Court in the case of J. K. Cotton Spinning and Weaving Mills C. Ltd. vs. C .....

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any time from the period of limitation as per this Explanation. 17. If a very strict interpretation is given, notice should have been issued before passing the order of stay so that service of the notice could be blocked. But such an extreme view is not necessary for understanding the contours of the Explanation. 18. In considering whether the extension of time permitted in S. 11A of the Act can be liberally construed or that it should be a strict construction, we think it useful to recall how t .....

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statute would amount to contravention of fundamental rights, and in support of that contention, those appellants made reliance on the decision of this Court in Rai Ramakrishna v. State of Bihar (1964) 1 SCR 897 : (AIR 1963 SC 1667) and Jawaharmal v. State of Rajasthan (1966) 1 SCR 890 : (AIR 1966 SC 764). In the former decision, this Court has pointed out that if the retrospective feature of a law is arbitrary and burdensome, the statute will not be sustained and reasonableness of the extent of .....

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t endeavour resulted in the judicial pronouncement in J. K. Spinning and Weaving Mills (AIR 1988 SC 191) (supra) by placing those provisions subject to the time limit fixed under S. 11A. 20. If the said rider was not imposed by this Court as per the decision in J. K. Cotton Spinning and Weaving Co. case (AIR 1988 SC 191) (supra), what would have been the fate of Rules 9 and 49 (as amended) in the wake of the challenge to its vires cannot now be reexamined. Whatever it be, the fact remains, that .....

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s not been levied on the commodity; (ii) when such duty has been short levied; or (iii) When such duty, though levied, has not been paid;or (iv) when such duty levied was only short paid. 22. If any one of the above conditions exists, the notice contemplated therein can be issued. It is an extremely difficult proposition for acceptance that Collector of Central Excise was prevented from issuing a notice to the appellant in this case as the Delhi High Court has restrained the department from givi .....

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a notice under subsection (1) to S. 11A of the Act. The answer is, that the Collector could still have issued a notice. If so, the suspension of the circular by the order of the Court would not have prevented the Collector from issuing the notice. The effect of the Court order dated 1281981 was only to keep the circular in suspended animation so far as the appellant is concerned and nothing more. 21) Mr. Pakale's reliance on the Judgment of the Hon'ble Supreme Court of India in the case .....

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g in nature. It is upon such conclusion that the Hon'ble Supreme Court sustained the show cause notice and the demand. It then interpreted section 125(2) of the Customs Act, 1962. In reinforcement of this conclusion and which we have adverted to hereinabove, the Hon'ble Supreme Court concluded that the Department is taking shelter under the provisions of subsection (2) of section 125 of the Act. However, on a plain reading of the said provision, it would not apply in a case where option .....

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e continuing nature of the imposition was therefore an exercise and which was falling for consideration of the Hon'ble Supreme Court of India. This decision can have no application to the facts of the present case. 22) In the case of Kalvert Foods (supra), the Hon'ble Supreme Court of India found and on facts that the first Respondent before it was a company engaged in the manufacture of food products. On 22nd November, 2000 on receiving the information that the Respondent indulged in cl .....

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pondent was not guilty of clandestine removal of excisable goods and also the goods were excisable inasmuch as they were not packed in the containers and therefore not required to pay Excise Duty. Thus, against such a conclusion of the CEGAT that the matter was carried to the Hon'ble Supreme Court of India. The rival contentions have been noticed and thereafter, the Hon'ble Supreme Court found that the company had admitted the fact that it was guilty of clandestine removal of excisable g .....

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on record. In the aforesaid position and since there was clandestine removal of excisable goods the period of limitation in the present case would have to be computed from the date of their knowledge, arrived at upon raids on the premises. This observation in para 27 cannot be read in isolation. That paragraph will have to be read as a whole. That paragraph read as a whole and with the preceding paragraphs as also the subsequent one indicate that the extended period of limitation was available .....

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and defined but from the knowledge of fraud. 23) In the view that we have taken, it is not necessary to refer to the decisions relied upon by Mr. Sridharan. Suffice it to note that in the light of the clear language of the Statute the Hon'ble Supreme Court arrived at somewhat similar conclusion. In the case of Ahmedabad Manufacturing and Calico Printing Co., Ltd. (supra) the Hon'ble Supreme Court concluded that the mistake can be corrected but the tax can be recovered in the light of the .....

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