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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 ..... sp; Whether confirmation of demand of duty and imposition of penalties on the appellants is sustainable in the facts and circumstances of this case? 2. Brief facts leading to this appeal are as follows : Appellant No. 1 is a company engaged in processing of textile fabrics. On 10-7-2003, a group of Central Excise Officers visited the factory of appellant No. 1 Company. Departmental Authorities through a panchnama recorded shortage of 1.82 lacs metres of unprocessed grey fabrics. Statement of the Director of the company was recorded. Statements of the merchants supplying fabrics to the appellant-company were also recorded. 3. On the premise that appellant No. 1 and its officers had indulged in clandestine removal of goods, a show cause notice came to be issued on 9-5-2005 raising duty demand of Rs. 2.78 lacs. The show cause notice also proposed charging of interest and imposing penalties on the company as well as on the responsible persons. 4. The appellants opposed the proposals by filing replies and participating in the adjudication. The Assistant Commissioner, by his order dated 25-1-2006 confirmed the duty demand of Rs. 2.78 lacs with interest and also imposed various penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Court when the case of Neminath Fabrics Pvt. Ltd. was decided. 10. Before referring to the several authorities cited by the counsel for the appellant, we may notice the statutory provisions contained in Section 11A of the Act. Section 11A of the Central Excise Act pertains to recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. Section 11A which is relevant for our purpose reads as under : "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 provisions of this Act or the rules made thereunder, a Central Excise Officer may, within one year from the relevant date, serve notice on the persons 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 may notice that the question which is being debated before us was precisely the question which the Division Bench in the case of Neminath Fabrics Pvt. Ltd. (supra) was confronted with. It was a case wherein the respondent was engaged in manufacture of man-made fabrics on job work basis. Officers of the Central Excise Department carried out preventive checks on the factory of the respondent on 21-6-2002. During such checks, when the Departmental Authorities found shortage of grey fabrics, a show cause notice for recovery of the duty, penalties and interest for such clandestine removal of goods was issued on 9-5-2005, which came to be adjudicated and the Adjudicating Authority passed order-in-original on 22-2-2006 confirming the duty demand of Rs. 4 lacs with interest and penalties. The manufacturer thereupon carried the matter in appeal before the Commissioner (Appeals), who dismissed the appeal. However, in further appeal, the Tribunal reversed the decisions of the Departmental Authorities and quashed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 rewrite 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 proviso to sub-section (1) of Section 11A, is clear and unambiguous and makes it abundantly clear that moment there is non-levy or short levy etc. of Central Excise duty with intention to evade payment of duty for any of the reasons specified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of duties not levied or not paid or short-levied or short-paid or erroneously refunded. The main body of sub-section (1) of Section 11A enables the Department to seek recovery of such duties by serving a notice on the person chargeable with such duty within a period of one year from the relevant date. Proviso to sub-section (1) of Section 11A, however, applies in case where such duty of excise has not been levied, paid or short-paid or short-levied or erroneously refunded by reason of fraud, collusion or any wilful misstatement or suppression of facts or in contravention of any of the provisions of the Act or the Rules with an intent to evade payment of duty. In such a case, period of one year for service of notice would be substituted by five years. 14. Sub-section (3) of Section 11A defines different terms used in the section. Clause (2) thereof pertains to relevant date and specifies, relevant date under different circumstances. 15. Upon reading the relevant provisions contained in Section 11A of the Act, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. On this ground, the Tribunal was inclined to uphold the manufacturer's plea of limitation. The case on hand involves vitally different facts. The above decision, therefore, would not apply. 20. Reliance was placed on the decision in the case of Nizam Sugar Factory v. Collector of Central Excise, A.P. - 2006 (197) E.L.T. 465 (S.C.) = 2008 (9) S.T.R. 314 (S.C.) wherein the Department had issued a show cause notice on 28-2-1984 demanding duty for the period between February, 1978 to September, 1982. The manufacturer had opposed such notice contending that the product manufactured by it was not exigible to duty. The case was heard on 16-4-1984, but thereafter no further action was taken in the matter. Thereafter, the manufacturer was served with second show cause notice on 16-7-87 covering the period of assessment years 1982-83 to 1986-87. The manufacturer opposed the proceedings contending, inter alia, that the Department had issued a show cause notice on the basis of certain set of facts. It cannot allege in another show c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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