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TMI Blog2018 (9) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... correct interpretation. In respect of discovery of the fact on misrepresentation to evade the duty, it is the law which is prevalent on the date when such an act is discovered would be applicable. The contentions when examined in the context of the present fact situation wherein the period includes the period when section 11AC of the Act come into existence, deserves to be rejected. A default, which is a continuing default and not a default once for all, can be dealt with under the provision of new enactment, if it continues when the new enactment came into force, although it commenced when the old enactment was in force. The substantial question as to whether Section 11AC of the Central Excise Act is prospective; if so, whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore extended period of five years under proviso to Section 11A(i) of the Central Excise Act, 1944 are invokable to recover the duty and why : (i) Central Excise duty of ₹ 4,19,870/- not paid by the noticee on the clearance of finished goods of others brand name should not be demanded and recovered from them under Rule 9(2) of the Central Excise Rules, 1944 read with proviso to Section 11A(l) of the Central Excise Act, 1944. (ii) A penalty should not be imposed upon them under Section 11AC of the Central Excise Act, 1944 read with Rule 173Q of the Rules. (iii) Interest on duty confirmed for payment shall not be recovered from them under Section 11AB of C. Ex. Act, 1944. (iv) Land, building, plant, machinery, ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson under this section shall be twenty-five per cent of the duty so determined : Provided further that the benefit of reduced penalty under the first proviso shall be available if the amount of penalty so determined has also been paid within the period of thirty days referred to in that proviso : Provided also that where the duty determined to be payable is reduced or increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the Court, then, for the purposes of this section, the duty, as reduced or increased, as the case may be, shall be taken into account : Provided also that in case where the duty determined to be payable is increased by the Commissioner (Appeals), the Appellate Tribunal or, as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 1-4-1994 to 16-1-1997, the provisions of Section 11AC of the Act cannot be invoked as the same would tantamount to retrospective effect of the provisions. In our considered opinion, it is not a correct interpretation. In respect of discovery of the fact on misrepresentation to evade the duty, it is the law which is prevalent on the date when such an act is discovered would be applicable. The contentions when examined in the context of the present fact situation wherein the period includes the period when section 11AC of the Act come into existence, deserves to be rejected. In this context, reference can be had of the decision in Brij Mohan v. Commissioner of Income Tax, New Delhi, AIR 1979 SC 1897 wherein it is held : 8. The case of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealment takes place which is relevant. It is wholly immaterial that the income concealed was to be assessed in relation to an assessment year in the past. 7. In our considered opinion, a default, which is a continuing default and not a default once for all, can be dealt with under the provision of new enactment, if it continues when the new enactment came into force, although it commenced when the old enactment was in force. 8. In Smt. Maya Rani Punj v. Commissioner of Income Tax, Delhi, (1986) 1 SCC 445, it is held by Their Lordships : 17. In Words Phrases , Permanent Edition, under the head Continuing Offence , instances have been given which indicate that as long as the default continues the offence is deemed to repeat and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily penalty. For instance, see Ajit Kumar Sarkar v. Assistant Registrar of Companies. West Bengal 1979 Tax Law Reports 2001, where the Calcutta High Court dealing with the provisions of Section 159 and 162 of the Companies Act of 1956, held the liability to be a continuous one; United Savings and Finance Co. Pvt. Ltd. Anr. v. The Deputy Chief Officer. Reserve Bank of India, 1980 Crl. L.J. 607, where referring to Section 58B(2) of the Reserve Bank of India Act it was held that refusal to comply with the terms of the said section created an offence and continued to be an offence so long as such failure or refusal persisted; Oriental Bank of Commerce Anr. v. Delhi Development Authority Ors., 1982 Crl.LJ. 2230 (Del HC), where referring to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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