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TMI Blog2008 (9) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... ral 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 Excise Act, 1944 with retrospective effect?" 2. Briefly stated the facts of the case are that the assessee-Firm is manufacturing a product known as Penicillin G. Amidase Biocatalyst. The assessee declared the classification of this produce under sub-heading 3002.00 in the classification list w.e.f. 24-10-1999. The items classified under heading 3002.00 attract nil rate of duty. The list furnished by the assessee was approved by the Assis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, misstatement or suppression of facts, or contravention of any of the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vied 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 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, 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 excisable goods under any other provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 retrospective effect, it would be applicable to all the pending proceedings. By this amendment, the basis for arriving at the conclusion that Rule 10 (now Section 11A) does not deal with the classification list or relate to re-opening of classification list is altered by specifically providing that in such cases also, show-cause notice could be issued. Hence, the conditions on which the judgment was based are fundamentally altered and the decision in Cotspun's case would not have been rendered if amende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 itself. If we read the proviso in its entirety it is clear that the same is applicable only in a case where the non-payment, short levy, short payment or erroneous refund is on account of fraud, collusion or wilful misstatement or suppression of facts or contravention of the provisions of the Acts or Rules. The words contravention of any provision of this Act will have to be read 'ejusdem generis' with the words fraud, collusion, wilful misstatement and suppression of facts. The intention of the enactment is tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 Department. This statement may have been wrong but it cannot be said to have been made with an intention to defraud the State. It would be difficult to hold that such a mistake was a wilful misstatement or suppression of facts. 15. In view of the above discussion, we answer the questions in the following manner: 1. That CEGAT was right in holding that the extended period was not invocable in the facts and circumstances of the case. 2. In answer to question No. 2 we hold that CEGAT should have taken into account the amended prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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