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TMI Blog2013 (8) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... cases is five years from the relevant date - The show-cause notice was issued and served beyond the extended period of five years, the action of the appellant is clearly barred by time. Section 11A covers the field of any duty of excise not levied or not paid or has been short levied or short paid etc - It is section 11A which is attracted and not section 11D of the Act – Decided against the Revenue. - CENTRAL EXCISE APPEAL NO. 115 of 2005 - - - Dated:- 5-4-2013 - PRAKASH KRISHNA AND Ram Surat Ram (Maurya), JJ. For the Appellant : K.C. Sinha and S.P. Kesarwani. For the Respondent : Pankaj Bhatia and Gopal Verma. ORDER:- PER : Prakash Krishna The above appeal has been filed under section 35-G of the Central Excise Act, 1944 by the Central Excise Department questioning the legality and validity of the order dated 13.12.2004 passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi in E/A Nos. 2125-2126/04 - NB(C) whereby the Tribunal has confirmed the order passed by the Commissioner (Appeals). The respondent mill is engaged in the manufacture and clearance of made up textile articles and processed textile falling under Chapters 63 and 52 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 11-A and importing the specific period of limitation of Section 11-A in Section 11-D where there is really no limitation prescribed is not permissible in the light of law laid down by Apex Court in Commissioner v. Raghuvar (India) Ltd. 2000 (118) ELT Page 311 ? 2. Whether the Hon'ble Tribunal was right in holding that Section 11-D has got no application in this case due to the reason that not a single penny was paid towards the duty to the department while clearing the goods and therefore the question of receiving/collecting more duty than what was paid to the department by way of duty, did not arise, although the title of Section 11D reads as "Duties of Excise collected from the buyers to be deposited with the Central Government?" 3. Whether the Hon'ble Tribunal was right in ignoring the word "determined" appearing in Section 11-D and fastening the applicability of Section 11D only with the assessment while holding that "Mere issuance of the invoices by the respondents to the buyer while clearing the goods did not result in assessment of the duty specially when the respondents had not paid any duty whatsoever while issuing the invoice?" Heard Sri S.P. Kesa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the department. The Department had issued the show-cause notice after expiry of the period of five years and for an effective defence/reply, the manufacturer required certain documents which were not supplied and the prayer was refused. Resultantly, in absence of relevant record, the respondent manufacturer was not afforded a reasonable opportunity of hearing which vitiates the entire proceedings. The reliance placed on the statement of Sri Vinay Agrawal was misplaced one inasmuch as he gave the statement to the effect that it appears that the duty was not paid in absence of record and this statement does not lead to the conclusion that the non-payment of duty or short payment of duty was an admitted fact by the manufacturer. Considered the respective submissions of the learned counsel for the parties. All the questions are interrelated, as such, are taken together. For the sake of convenience, Section 11-D is reproduced below:- Duties of excise collected from the buyer to be deposited with the Central Government. (1) "Notwithstanding anything to the contrary contained in any order or direction of the Appellate Tribunal or any Court or in any other provision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner of Central Excise for the refund of such surplus amount." Every person who has collected any amount from buyer as duty is liable to pay the said amount forthwith to the Central Government and shall be given credit on finalization of assessment. A fair reading of the provision quoted above would show that a person who has collected any amount in excess of duty assessed or determined from the buyer, shall forthwith pay the amount so collected to the credit of the Central Government. The liability to pay the amount collected as duty in excess of duty assessed or determined has been created by section 11-D (1). A person who fails to deposit the duty as provided for under sub-section (1) of section 11-D be asked to deposit the duty after serving a show-cause notice by the Central Excise Officer who will pass an order after considering the explanation for payment of the amount so determined by him. The amount paid or deposited to the credit of the Central Government under sub-section (1) or sub-section (1A) or sub-section (3) shall be given adjustment against the duty of excess payable on finalization of assessment or any other proceeding for determination of duty of excess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal assessment under Rule 9B, summary assessment under Rule 37A, best judgment assessment under Rule 173Q and any other order of assessment in which duty assessed is nil." In view the above, the argument of the department is that even if there is no assessment order of any kind by the proper officer even then the self-assessment made by the respondent manufacturer would be assessment in view of the above amended definition. At this juncture, the learned counsel for the respondent manufacturer rightly submitted that the amended Rule came into force w.e.f. 20th of November, 1996 i.e. subsequent to the period involved "April, 1996 to June, 1996" herein and as such, the amended Rule will not be applicable to the present case. We find sufficient force in the above argument of the learned counsel for the respondent manufacturer. Even otherwise also, the argument of the learned counsel for appellant is far-stretched. The Department cannot blow hot and cold simultaneously by saying, on one hand, that the self-assessment is assessment and on the other hand, that it is not bound by the self-assessment and can create a demand without passing any assessment order rejecting the self-assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bject to final assessment, final assessment is barred by time, cannot be pressed into service. Machinery provision section 11-D could be invoked in the aid of main provision i.e. section 11-A, but not vice versa. to some extent the law as laid down by the Apex Court in the case of Indian Carbon Ltd. v. State of Assam [1997] 106 STC 460,wherein it has been laid down that interest for late payment of central sales tax, cannot be levied, unless there is such substantive provision in the Central Sales Tax Act for levy of interest, supports the above view. Section-11A provides for recovery of duties not levied or not paid or short levied or short paid or erroneously refunded. The normal period for recovery of such dues is one year from the relevant date. However, the period of one year can be extended in cases of fraud, collusion, any wilful misstatement or suppression of facts by any person or his agent. The period for which the duty has not been paid on the goods i.e. hand towels is April, 1996 to June, 1996. The show-cause notice is dated 6th of March, 2003 and was served on 3rd of February, 2004, beyond the maximum prescribed period of limitation. The contention of the Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -11A is very widely worded and provides for recovery of duties not levied or not paid or short levied or short paid or erroneously refunded. All possible eventuality of loss of revenue to the Central Government is comprehended therein. Taking that it is a case of recovery of duty either not levied or not paid even though the prescribed period of limitation in such cases is five years from the relevant date. The relevant date is defined in its sub-section (3) (ii) which means where under the Rules made under this Act, a periodical return is to be filed, the date on which such return is to be filed and where no periodical return is to be filed, the last date on which such return is to be filed under the said Rules and in any other case, the date on which the duty is to be paid under this Act or the Rules made thereunder. The show-cause notice which indicates the stand of the appellant shows that it was issued on the allegation that the goods were cleared from the factory without payment of Central Excise Duty leviable thereon etc. The show-cause notice proceeds on the footing that the respondent had indulged in clandestine removal of the goods during the period April, 1996 to June, 1 ..... 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