TMI Blog2008 (9) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Sandeep Sharma, Assistant Solicitor General, for the Petitioner. Shri M.M. Khanna, Sr. Advocate with Ms. Bhawana Sharma, Advocate, for the Respondent. [Judgment per: Deepak Gupta, J.]. - These reference petitions have been admitted on the following questions of law: "1. Whether in the facts and circumstances of the case CEGAT was right in interpreting the provisions of proviso to sub-section (1) of Section 11A of the Central Excise Act, 1944 and holding that the extended period was not invokable in facts of the case? 2. Whether in the facts and circumstances of the case CEGAT ought to have taken into account Section 110 of the Finance Act, 2000 which seeks to validate certain actions taken under Section 11A of the Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e period February, 1990 to July, 1994 under show cause notice dated 24-2-1995 was held to be time-barred and not sustainable in law. 4. To decide the questions which have been raised in this case it would be relevant to refer to the unamended and amended portions of Section 11A of the Central Excise Act. 5. The relevant part of unamended Section 11A was as under - "Section 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, a Central Excise Officer may, within six months from the relevant date, serve notice on the person chargeable with the duty which has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing provisos shall be inserted, namely: '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 sub-section shall be served by the Commissioner of Central Excise or with his prior approval by any officer subordinate to him: Provided also 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 more than one crore rupees, no notice under this sub-section shall be served without the prior approval of the Chief Commissioner of Central Excise" 7. After amendment, relevant part of Section 11A reads thus: "Section 11A. Recovery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 110 of the Finance Act, 2000 have retrospective effect or not. 9. It is not disputed that though the amendment was brought in by the Finance Act of 2000, it was given retrospective effect and was brought into force from 17-11-1980 the date on which Section 11A was introduced. 10. The Apex Court in Easland Combines, Coimbatore v. Collector of Central Excise, Coimbatore , 2003 (152) E.L.T. 39 (S.C.) = (2003) 3 SCC 410, has clearly held that this amendment has been given retrospective effect and the said amendment has been upheld. The Court held as follows "15. Now, after amendment, this can be done by the Central Excise Officer within a period of one year from the relevant date. As amendment is given retros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Rules made thereunder. It is thus obvious that when the Department has given its approval the main provision of Section 11A will apply and the limitation will be one year. 12. Shri Sandeep Sharma, learned Assistant Solicitor General has urged that the proviso contains the words 'with intent to evade payment of duty". He submits that the wrong declaration was made in the list with an intent to evade payment of duty and therefore the limitation should be five years as provided in the proviso to amended Section 11A. We cannot accept this argument. Both the main section and the proviso have to be read together. It is well settled law that the proviso is an exception and cannot be read in a manner that it over-shadows the main provision i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on or wilful misstatement or suppression of fact or contravention of any provision is not sufficient to attract the extended period of limitation." 14. Applying the aforesaid principle, we find that in the present case the Department has failed to point out any positive act on the part of the manufacturer which could be said to be fraudulent, collusive or amounted to making a wilful misstatement etc. In the present case the Company had not hidden or misstated the product which it was manufacturing. It had clearly given the name of the product. Its claim was that it fell under item 3002.00. This list was accepted by the Department. The assessee had not made any misstatement of facts nor had done any positive act to mis-lead the Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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