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TMI Blog2010 (12) TMI 1001X X X X Extracts X X X X X X X X Extracts X X X X ..... ent assessee and established by evidence on record and as a natural corollary, the proviso to sub-section (1) of Section 11A would stand attracted. In the circumstances, the impugned order of the Tribunal whereby it has been held that the show cause notice issued beyond the period of six months from the date of knowledge is barred by limitation is clearly contrary to the provisions of Section 11A of the Act and as such cannot be sustained. No merit in the contention of the Respondents that the Revenue was aware of the irregularities in the year 2006 when Audit memos were issued hence the allegation of suppression is not sustainable. The impugned order is set aside and Appeal filed by the Revenue is allowed and order passed by the adjudicating authority is restored. Against assessee. - E/540/2010 - A-685/KOL/2010, - Dated:- 30-12-2010 - Shri S.S. Kang, J. Shri A.K. Sharma, JDR, for the Appellant. Shri Shyamal Kr. Mukherjee, Commercial Manager, for the Respondent. [Order]. Heard both sides. 2. Revenue filed this Appeal against the impugned order whereby Commissioner (Appeals) set aside the demand of credit along with interest and penalties on the ground of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st which the Revenue filed Appeal and the same was dismissed by the Hon ble Calcutta High Court [2009 (242) E.L.T. A84 (Cal.)]. 6. I find that in the present case the Respondent availed credit in respect of Customs Duty as well as Special Additional Duty paid on the imported goods. As per the CENVAT Credit Rules the credit of such duties were not available. The Respondent has no dispute on this issue. The only issue raised by the Respondent is that demand is time barred as held by the Commissioner (Appeals) on the ground that Audit memos were issued in the year 2006 and therefore after 2006 there is no suppression on the part of the Respondent. The Respondent relied upon the decision of Hon ble Supreme Court in the case of Nizam Sugar Factory. I find that in the Nizam Sugar Factory issue Hon ble Supreme Court held that when the first Show Cause Notice was issued all the relevant facts were under the knowledge of the authorities therefore in the subsequent Show Cause Notices allegation of suppression is not sustainable. The Respondent relied upon the decision of the Tribunal in the case of Neminath Fabrics which is overruled by Hon ble Gujarat High Court reported in 2010 (256) E.L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by any Court. If it is not open to the superior court to either add or substitute words in a statute such right cannot be available to a statutory Tribunal. 17. The proviso cannot be read to mean that because there is knowledge the suppression which stands established disappears. Similarly the concept of reasonable period of limitation which is sought to be read into the provision by some of the orders of the Tribunal also cannot be permitted in law when the statute itself has provided for a fixed period of limitation. It is equally well settled that it is not open to the Court while reading a provision to either re-write the period of limitation or curtail the prescribed period of limitation. 18. The proviso comes into play only when suppression etc. is established or stands admitted. It would differ from a case where fraud, etc. are merely alleged and are disputed by an assessee. Hence, by no stretch of imagination the concept of Knowledge can be read into the provisions because that would tantamount to rendering the defined term relevant date nugatory and such an interpretation is not permissible. 19. The language employed in the provisions to sub-section (1) of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sthan Spinning and Weaving Mills (supra) has held thus : From sub-section (1) read with its proviso it is clear that in case the short payment, not payment, erroneous refund of duty is unintended and not attributable to fraud, collusion or any willful mis-statement or suppression of facts, or contravention of any of the provisions of the Act or of the rules made under it with intent to evade payment of duty then the Revenue can give notice for recovery of the duty to the person in default within one year from the relevant date [defined in sub-section (3)]. In other words, in the absence of any element of deception or malpractice the recovery of duty can only be for a period not exceeding one year. But in case the non-payment etc. of duty is intentional and by adopting any means as indicated in the proviso then the period of notice and a priory the period for which duty can be demanded gets extended to five years. 23. This decision would be applicable on all fours to the facts of the present case, viz. when non-payment etc. of duty is intentional and by adopting any of the means indicated in the proviso, then the period of notice gets extended to five years. 24. The decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they had agreed that they had sent the grey fabrics to the respondent and received the resultant processed fabrics, without cover of central excise invoices and without payment of central excise duty leviable thereon during the relevant period. Thus, in the facts of the present case suppression stands admitted by the respondent assessee and established by evidence on record and as a natural corollary, the proviso to sub-section (1) of Section 11A would stand attracted. In the circumstances, the impugned order of the Tribunal whereby it has been held that the show cause notice issued beyond the period of six months from the date of knowledge is barred by limitation is clearly contrary to the provisions of Section 11A of the Act and as such cannot be sustained. 7. The ratio of the above decision of the Hon ble High Court is fully applicable to the facts of the present case and in view of that above decision I find no merit in the contention of the Respondents that the Revenue was aware of the irregularities in the year 2006 when Audit memos were issued hence the allegation of suppression is not sustainable. The impugned order is set aside and Appeal filed by the Revenue is allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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