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TMI Blog2015 (7) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... o note that on the question of classification the Tribunal itself has found that the stand in regard of department is correct. There remained no dispute that the goods in question were excisable goods and therefore removal of such goods without paying duty was in contravention of the provisions of the Act and Rules applicable and, therefore, the condtions mentioned under Section 11 A(1) of the Act were satisfied. Thus the extended period of limitation under the proviso to Section 11A(1) of the Act was lawfully invoked. The respondent-assessee is liable to interest and penalty in accordance with law. - Decided in favour of Revenue. - Central Excise Reference No.- 8 of 2004 - - - Dated:- 10-7-2015 - Hon'ble Arun Tandon And Hon'ble Surya Prakash Kesarwani,JJ. For the Applicant : C. S. C. ,B.K.S.Raguvanshi For the Respondent : R. R. Kapoor ORDER 1. Heard Sri B.K. Raghubansi, learned counsel for the applicant/department and Sri S.D. Singh, learned senior advocate assisted by Sri Rishi Raj Kapoor, learned counsel for the respondent-assessee. 2. In this central excise reference, following questions of law has been referred by the Tribunal at the instance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise Act, 1944 (hereinafter referred to as the Act) on the goods clandestinely removed along with interest. Penalty was also proposed to be levied and seized goods were proposed to be confiscated under Rule 173Q of the Rules. In the said show cause notice the Commissioner of Central Excise, Meerut clearly alleged that during the period March, 1992 to September, 1996 the respondent clandestinely removed excisable goods with sole intention to evade payment of Central Excise duty by deliberately suppressing the production and clearance of shampoos. The extended period of limitation as provided under Section 11A(i) of the Act was invoked. 5. The respondent filed their objection to the notice. 6. The aforesaid show cause notice was adjudicated by the Commissioner of Central Excise, Meerut-II vide order in original dated 27th November, 1997. Finding on the question of classification and invoking extended period of limitation under the proviso to Section 11A (I) was recorded as under: In view of the foregoing discussion and findings, I hold that the product/preparation manufactured by M/s DJS is Shampoo being used for use on hair and merits classification under chapter 3305.99 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 813/99-C dated 18.8.1999 passed in the case of another accessee. The relevant part of the order is as under: Advocate A.R. Madhav Rao and Dr. Ravinder Babu, JDR for the department were heard and after considering the submissions it is found:- (a) the Advocate relied upon the final order No. 812-813/99-C dated 18.8.1999 in the case of M/s Kshetria Shree Gandhi Ashram, Civil Lines, Moradabad, U.P. Vs. CCE Meerut wherein a similar product was held by them to be herbal shampoo and not to be an Ayurvedic medicine. However, the demands were set aside for a period six months on the following findings:- On the question of limitation, finding of the adjudicating authority is as follows: ........... I find that the party failed to inform the department about its manufacture and did not obtain registration during the impugned period under dispute as required under Rule 174 of the Central Excise Rules, 1944 and hence, failed to discharge their statutory duties and are liable for penal action under Rule 1730 of Central Excise Rules, 1944........ . We observe that the findings of the adjudicating authority does not say that the appellants herein wilfully mis-stated or suppresse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liberate suppression of facts, clandestine removal of goods with intention to evade payment of duty. The facts of the case in which findings recorded in the final order as relied by the tribunal were distinguishable inasmuch in that case the adjudicating authority had not recorded any finding with regard to wilful misstatement/suppression of fact or contravention of rules with intention to evade payment of duty, it was only recorded that, the assessee failed to inform the department about the manufacture of the product under consideration. On the contrary in the case of the respondents the adjudicating authority has recorded a clear finding of fact that the respondent had deliberately suppressed material information from the department and cleared excisable goods clandestinely without payment of duty and without obtaining central excise registration. Thus they failed to discharge their statutory obligation. He, therefore, submits that the final order of the tribunal in question is based on misreading of the adjudication order and the findings recorded therein and penalty and interest were rightly levied. 10. He, therefore, submits that the referred question of law deserves to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f duty. 16. Section 11A(1) of the Act as stood at the relevant time is reproduced below: (1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, a Central Excise Officer may, within six months from the relevant date, serve notice on the person 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 has erroneously been made, requiring him to show caue why he should not pay the amount specified in the notice: Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful mis-statement or suppression of facts or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect for the words six months , the words five years were substituted. 17. Bare perusal of Section 11A(1) of the Act clearly shows that the extended period of limitation of five years may be invoked, if the central excise du ..... X X X X Extracts X X X X X X X X Extracts X X X X
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