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TMI Blog2014 (12) TMI 1086X X X X Extracts X X X X X X X X Extracts X X X X ..... he words ‘mis-statement or suppression of facts which means with intent to evade duty. The next set of words ‘contravention of any of the provisions of this Act or Rules’ are again qualified by the immediately following words ‘with intent to evade payment of duty’. It is, therefore, not correct to say that there can be a suppression or mis-statement of fact, which is not wilful and yet constitutes a permissible ground for the purpose of the proviso to Section 11A. Mis-statement or suppression of fact must be wilful. Words ‘suppression of facts’, used in Rule 57I of the Central Excise Rules, 1944 are in the company of words like collusion and wilful mis-statement and will have to be understood to mean ‘with intent to evade payment of duty’. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... JJ. For the Appellant : Shri Hardik Modh, Advocate For the Respondent : Shri J. Nair, A.R. JUDGEMENT Per : Mr. H.K. Thakur; This appeal has been filed by the appellant with respect to OIO No. 11/MP/2006 dated 25.5.2006 passed by Commissioner of Customs Central Excise, Surat. 2. Shri Hardik Modh (Advocate) appearing on behalf of the appellant argued that this is the second round of litigation. That in the first round of litigation CESTAT vide order No. C II/1780/WZB/2003 dated 07.7.2003 remanded the case back to the Adjudicating authority to pass the order on limitations claimed by the appellant and that on merits the case was decide against them. That the Adjudicating authority has held that mere Suppression ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.2 Learned Advocate further argued that all the inputs were eligible for modvat credit but for non-filing of the required declarations. He made the bench go through Para -6 of the show cause notice dated 11.11.1994 to emphasis that show cause notice also admits the credit was otherwise admissible to the appellant. That as the credit was admissible but for not following the procedure, therefore, there cannot be any intention to evade payment of duty. It was thus strongly argued by the learned Advocate that extended period of 5 years is not applicable in this case and the demand is time barred. 3. Shri J. Nair (AR) appearing on behalf of the Revenue argued that the judgments relied upon by the appellant are with respect to Section 11A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of an error, omission or mis-construction, on the part of an officer or a manufacturer, or an assessee, the proper officer may, within six months from the date of such credit, serve notice on the manufacturer or the assessee who has taken such credit requiring him to show cause why he should not be disallowed to such credit and where the credit has already been utilized, why the amount equivalent to such credit should not be recovered from him: Provided that where such credit has been taken on account of willful mis-statement, collusion or suppression of facts on the part of a manufacturer or an assessee, the provisions of this Clause shall have effect as if for the words six months the words five years were substituted. [Expla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd collusion are concerned, it is evident that the requisite intent, i.e., intent to evade duty is built into these very words. So far as mis-statement or suppression of facts are concerned, they are clearly qualified by the word wilful preceding the words mis-statement or suppression of facts which means with intent to evade duty. The next set of words contravention of any of the provisions of this Act or Rules are again qualified by the immediately following words with intent to evade payment of duty . It is, therefore, not correct to say that there can be a suppression or mis-statement of fact, which is not wilful and yet constitutes a permissible ground for the purpose of the proviso to Section 11A. Mis-statement or suppression of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it suppression. 4.3 In view of the above case laws the words suppression of facts , used in Rule 57I of the Central Excise Rules, 1944 are in the company of words like collusion and wilful mis-statement and will have to be understood to mean with intent to evade payment of duty . The observations made by the Adjudicating authority that no intention to evade is required for invoking extended period of 5 years, can not thus be appreciated as the correct interpretation of law. Though there is no dispute that provisions of Section 11A of the Central Excise Act, 1944 are independent of recovery machinery under Rule 57-I of the Central Excise Rules, 1944, but the ratio of the words suppression of facts and wilful as interpreted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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