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TMI Blog2008 (5) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter, a cross reference has been made to the earlier reference made to the Larger Bench on the same issue vide Referal Order No. A-460-461/KOL/2001 dated 3-7-2001 in Excise Appeal Nos. 220-221/99 [2001(133) E.L.T. 235 (T)]. As those Appeals were against the Orders passed by the Commissioner (Appeals) in storage loss cases, the Larger Bench while hearing the matter earlier today, dismissed the same as not maintainable for lack of jurisdiction to hear such Appeals vide Larger Bench Order No. A-570-571/KOL/2008, dated 26-5-2008 [2008 (227) E.L.T. 203 (Tri.-LB)]. As far as this Appeal is concerned, since it is against an Order passed by the Jurisdictional Commissioner, the Tribunal has jurisdiction to hear the same and hence, we take up the reference made to the Larger Bench for consideration. While doing so, we have taken into account the conflicting decisions referred to in the Referal Order dated 3-7-2001 passed in Excise Appeal Nos. 220-221/99, as the Referal Order in the present Appeal is very brief and it cross-refers to the said earlier Referal Order. 2. Shri S.P. Majumder, learned Advocate appearing for the Appellants states that the show cause notice dated 25-4-91 le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Board has prescribed various percentages of loss to be normal in respect of integrated steel plants. 5. The learned J.C.D.R. states that the decision of the Hon'ble Madras High court in the case of Carborundum Universal Ltd. v. Union of India - 1992 (58) EL.T. 403 (Mad.) - clearly holds that Section 11A and Rule 223A deal with different situations serving different objects. The Hon'ble High Court also held that limitation under Section 11A is inapplicable to a situation contemplated under Rule 223A. He states that the decision of the Hon'ble Allahabad High Court in the case of U.P. State Cement Corporation Ltd. v. Union of India - 1996 (86) E.L.T. 6 (All.) is in respect of an entirely different issue and relates to a different rule namely, Rule 196. He states that since Rule 196 deals with exemption from duty on goods used for special industrial purposes, the same can have a link with the non-levy and short-levy dealt under Section 11A, but Rule 223A deals with an entirely separate situation and is concerned with maintaining proper excise control over non-duty-paid goods allowed to be stored inside a factory and the duty-demand on non-accounted-for goods have no l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, the keeper thereof, shall, unless the deficiency be accounted for to the satisfaction of the proper officer be liable to pay the full amount of duty chargeable on such goods as are found deficient and also a penalty which may extend to two thousand rupees." We find that the above Rule provides for making allowance for waste by evaporation or other natural causes and for demand of duty on the deficiency which is not accounted for. The Rule also has an independent provision for imposing penalty. We also note that as far as the integrated steel plants are concerned, the stock-taking for the purpose of Rule 223A is not separately ordered, but the internal stock-takings done by the steel plants themselves are taken to serve the purpose of Rule 223A as a long accepted practice. 8. Section 11A of the Central Excise Act, 1944 reads as under :- "Section 11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. - (1) When the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-section (1A), the proceedings in respect of such person and other persons to whom notice are served under sub-section (1) shall, without prejudice to the provisions of Section 9, 9A and 9AA, be deemed to be conclusive as to the matters stated therein: Provided further that, if such person has paid duty in part, interest and penalty under sub-section (1A), the Central Excise Officers, shall determine the amount of duty or interest not being in excess of the amount partly due from such person. (2A) Where any notice has been served on a person under sub-section (1), the Central Excise Officer, (a) in case 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 thereunder with intent to evade payment of duty, where it is possible to do so, shall determine the amount of such duty, within a period of one year; and (b) in any other case, where it is possible to do so, shall determine the amount of duty of excise which has not been levied or paid or has been short-levied or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t-levied or short-paid - (A) where under the rules made under this Act a periodical return, showing particulars of the duty paid on the excisable goods removed during the period to which the said return relates, is to be filed by a manufacturer or a producer or a licensee of a warehouse, as the case may be, the date on which such return is so filed; (B) where no periodical return as aforesaid is filed, the last date on which such return is to be filed under the said rules; (C) in any other case, the date on which the duty is to be paid under this Act or the rules made thereunder; (b) in case where duty of excise is provisionally assessed under this Act or the rules made thereunder, the date of adjustment after the final assessment thereof; (c) the case of excisable goods on which duty of excise has been erroneously refunded, the date of such refund." We find that Section 11A deals with cases of duty of excise not levied or not paid or short-levied or short-paid or erroneously refunded. There is a normal period prescribed under the Section for recovery of such amounts not levied etc. and an extended period when non-levy, short-levy etc. is by reason of fraud, collusion, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r contravention of the said Rule. 10. In view of the fact that Rules 9 and 223A provide separate penalties, it clearly goes to show that both the Rules are dealing with separate, independent and different situations serving different objects. It has been brought to our notice that the three Judges Bench of the Hon'ble Supreme Court, in the case of Collector of Central Excise, Jaipur v. Raghuvar (India) Ltd. - 2000 (118) E.L.T. 311 (S.C.), while dealing with recovery of credit wrongly availed of under Rule 57-I of the Central Excise Rules, 1944 has held that provisions of Section 11A have no application to any action taken under Rule 57-I. It has been also held therein that the Central Excise Rules, 1944 was not enacted either under Section 11A or to carry out the purposes of Section 11A of the Central Excise Act, 1944, but actually in exercise of Rule-making power under Section 37. It has been further held therein that any law or stipulation prescribing a period of limitation to do or not to do a thing after the expiry of period so stipulated has the consequence of creation and destruction of rights and, therefore, must be specifically enacted and prescribed therefor and it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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