9911796707
TMI Blog2011 (2) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... intent to evade duty, thus no merit in contentions of appellant that demand is time barred. - E/126/2010 - - - Dated:- 4-2-2011 - SHRI S.S. KANG, J. Appearance: Shri K.K.Banerjee, Advocate for the Appellant (s) Shri A.K.Sharma, Authorized Representative (JDR) for the Revenue (s) Per Shri S.S.Kang. 1. Heard both sides. 2. Appellants filed this Appeal against the impugned order whereby a demand of Rs.2,27,166.84 (Rupees Two Lakhs Twenty Seven Thousand One Hundred and Sixty Six and Eighty Four Paisa only) was confirmed along with interest after denying credit and penalty is imposed under Section 11AC of the Central Excise Act. 3. Brief facts of the case are that Appellants are working under the CENVAT Credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Show Cause Notice was issued after two years from the completion of enquiry. The Appeal filed by the Revenue against this decision was dismissed by Hon'ble Supreme Court reported in 2002 (146) ELT A-313. 5. Revenue submitted that investigation was conducted at the supplier's end and it was found that against two invoices issued by the supplier no duty has been paid. Learned J.D.R. also submitted that during investigation the supplier of inputs submitted that these two invoices are not issued by them. As the invoices were found to be not genuine therefore the impugned order is rightly passed. Revenue also relied upon the Hon'ble Gujarat High Court decision in the case of Commissioner of C.Ex., Surat-I v. Neminath Fabrics Pvt.Ltd. - 2010 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f sub-section (1) of Section 11A of the Act indicates that the provision is applicable in a case where any duty of excise has either not been levied/paid or has been short levied/short paid, or wrongly refunded, regardless of the fact that such non levy etc. is on the basis of any approval, acceptance or assessment relating to the rate of duty or valuation under any of the provisions of the Act or Rules thereunder and at that stage it would be open to the Central Excise Officer, in exercise of his discretion to serve the show cause notice on the person chargeable to such duty within one year from the relevant date. 12. The Proviso under the said sub-section stipulates that in case of such non-levy, etc. of duty which is by reason fraud, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecomes clear when one reads the Explanation in the said sub-section which only says that the period stated as to service of notice shall be excluded in computing the aforesaid period of 'one year' or 'five years' as the case may be. 16. The termini from which the period of 'one year' or 'five years' has to be computed is the relevant date which has been defined in sub-section (3)(ii) of Section 11A of the Act. A plain reading of the said definition shows that the concept of knowledge by the departmental authority is entirely absent. Hence, if one imports such concept in sub-section (1) of Section 11A of the Act or the proviso thereunder it would tantamount to rewriting the statutory provision and no canon of interpretation permits such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stand extended from one year to five years. This is the only requirement of the provision. Once it is found that the ingredients of the proviso are satisfied, all that has to be seen as to what is the relevant date and as to whether the show cause notice has been served within a period of five years therefrom. 20. Thus, what has been prescribed under the statute is that upon the reasons stipulated under the proviso being satisfied, the period of limitation for service of show cause notice under sub-section (1) of Section 11A, stands extended to five years from the relevant date. The period cannot by reason of any decision of a Court or even by subordinate legislation be either curtailed or enhanced. In the present case as well as in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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