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TMI Blog2013 (8) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... se falls under proviso to sub-section (1) and such omission is on account of fraud, collusion, wilful misstatement, etc - Decided against the Assessee. - Tax Appeal No. 132 of 2011 - - - Dated:- 27-1-2012 - Akil Kureshi and Sonia Gokani, JJ. Shri Paresh M. Dave, Advocate, for the Appellant. Ms. Amee Yajnik, for the Respondent. ORDER Appellant-manufacturer has challenged the judgment of the CESTAT raising following questions for our consideration : (a) Whether a show cause notice issued under Section 11A of the Central Excise Act, 1944 was not barred of limitation when the same was issued beyond the normal period of limitation computed from the date on which the case was discovered by the Department against the assessee, and still the show cause notice was issued beyond the normal period of limitation from the date on which the investigation was fully over and completed? (b) Whether the orders of the Appellate Tribunal in upholding issuance of show cause notice under Section 11A of the Act on 9-5-2005 though the entire investigation was completed on 30-7-2003 are not illegal and invalid? (c) Whether confirmation of demand of duty and imposition of penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the conclusion that there was no mistake which can be rectified and the application was therefore dismissed. At that stage, the appellants approached this Court by filing the present Tax Appeal challenging the orders of the Tribunal. 8. When the Tax Appeal was taken up for hearing, counsel for the appellant pressed only one ground in appeal, namely, that the show cause notice issued by the Assistant Commissioner was barred by limitation. In essence, the contention was that even in case where under proviso to Section 11A of the Act, extended period of limitation is available, once such clandestine removal is noticed by the Department or in any other manner comes to its knowledge, show cause notice could be issued only within one year from such date and not thereafter. 9. Counsel for the appellants candidly stated that such a contention was raised before a Division Bench of this Court in the case of Commissioner of C. Ex., Surat-1 v. Neminath Fabrics Pvt. Ltd. - 2010 (256) E.L.T. 369. Counsel, however, desired that the question be re-examined on the ground that several decisions on the point could not be presented before the Court when the case of Neminath Fabrics Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 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 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; (B) where no periodical return as aforesaid is filed, the last date on which such return is to be filed under the said rules; (C) in any other case, the date on which the duty is to be paid under this Act or the rules made thereunder; (b) in a case where duty of Excise is provisionally assessed under this Act or the rules made thereunder, 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. 11. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry of duty of excise not levied etc. gets enlarged. This position becomes 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 an exercise 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inasmuch as once the suppression is admitted, merely because the department acquires knowledge of the irregularities the suppression would not be obliterated. 21. It may be noticed that where the statute does not prescribe a period of limitation, the Apex Court as well as this Court have imported the concept of reasonable period and have held that where the statute does not provide for a period of limitation, action has to be taken within a reasonable time. However, in a case like the present one, where the statute itself prescribes a period of limitation the question of importing the concept of reasonable period does not arise at all as that would mean that the Court is substituting the period of limitation prescribed by the Legislature, which is not permissible in law. 13. From the above recorded portion of the judgment of the Division Bench, it can be seen that the entire issue was considered threadbare and after detailed exercise, the Division Bench rejected the same contention which has been raised before us now. We are bound by the view of a cognate Bench. Even otherwise, we are in respectful agreement with the view expressed. Section 11A of the Act, pertains to recovery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comes to the knowledge of the Department, let us say, on 1st July, 2010, would it then be open to the Department to serve a notice for recovery of such unpaid duty any time before 1st of July, 2011? If the concept of availability of one year, from the date of knowledge of the Department is imported in such a situation, the period that may be available for the Department to serve the notice for recovery of unpaid duty would get extended to 30th June, 2011, i.e. even beyond five years from the initial evasion of duty. Surely, the Legislature never intended to bring about such an incongruent situation. 18. We would, at this stage, like to deal with the decisions cited by the counsel for the appellants. 19. In the case of Commissioner of Central Excise, Goa, v. Gammon India Ltd. - 2002 (146) E.L.T. A313 (S.C.), the Apex Court had dismissed the Department s appeal against the judgment of the Tribunal in the case of Gammon India Ltd. v. Commissioner of Central Excise, Goa - 2002 (146) E.L.T. 173 (Tri.-Mumbai). If we peruse the decision of the Tribunal, it emerges that the Tribunal accepted the arguments of the manufacturer that fabrication was before the eyes of the general public. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfirm the Tribunal s order on the ground that the same suffers from no legal infirmity such as crucial evidence in the shape of weighment slips was non-existent and even the presence of panch witnesses was shrouded in doubt. It was in the background of these facts, the Division Bench observed as under : 6. In the background of the aforestated facts and circumstances, where the crucial evidence in the shape of weighment slips is non-existent and even the presence of panch witnesses is shrouded in doubt, and even assuming that panch witnesses were present, the refusal of permission to the respondent unit to examine them, it cannot be said that the order of the Tribunal suffers from any legal infirmity. In the absence of weighment slips, the amount of shortage itself is doubtful and the finding to this effect arrived at by the Tribunal is neither unreasonable nor unjustified, as contended by the learned counsel for the appellant. The delay in issuance of show cause notice is a factual aspect and, as has been noticed by the Tribunal, in the absence of any explanation, the show cause notice itself suffers from the vice of delay and laches. The impugned order of the Tribunal, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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