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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 ..... diction 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 leading to the present proceedings has been issued under Section 11A in supersession of another show cause notice issued earlier on 12-9-89. which was issued under Rule 223A. He states that since the Department had knowledge of the issues involved while issuing the earlier show cause notice, the longer time-limit under Section 11 A cannot be invoked in this case. He also states that the shortage found during the stock-taking conducted by the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 linkage with Section 11A which deals with non-levy and short-levy of duty on excisable goods. The learned J.C.D.R. also states that the conflicting decisions referred to in the Referal Order have mostly followed the decision of the Hon'ble Madras High Court in Carborundum Universal Ltd. (cited supra) while a few have followed the Hon'ble Allahabad High Court's decision in U.P. State Cement Corporation Ltd. (cited supra). He states that the decision of the Hon'b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under any other provisions of this Act or the rules made thereunder, a Central Excise Officer may, within one year 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 cause why he sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. (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 short-paid or erroneously refunded, within a period of six months, from the date of service of the notice on the person under sub-section (1). (2B) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person, chargeable with the duty, may pay the amount of duty on the basis of his own ascertainment of such duty or on the basis of duty ascertained by a Central Excise Officer before service of notice on him under sub-section (1) i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich 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, wilful mis-statement, suppression of facts or contravention of provisions of the Act and Rules with intention to evade payment of duty. We find that Section 11A as has been held by the Hon'ble Madras High Court in the case of Carborundum Universal Ltd. (cited supra) deals with an altogether different situation than Rule 223A which deals with non-accountal of the goods allowed to be stored in a factory, warehouse and approved storeroom. Moreover, we find that there are separate penalty provisions under the Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral 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 is not for the courts to import any specific period of limitation by implication, where there is really none. It has been also held by the Hon'ble Supreme Court that the limitation under Section 11A is not an omnibus provision which provides any period of limitation for all or any and every kind of action to be taken under the Act or the Rules but will attract only to cases where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded. 11. We are of the view that the Hon'b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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