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TMI Blog2019 (3) TMI 2073X X X X Extracts X X X X X X X X Extracts X X X X ..... n as required. However, the show-cause notice did not refer to the mis-statement or the suppression of facts being willful. In any event, the order impugned did not hold the assessee liable upon holding, as a matter of fact, that there was any mis-statement or suppression of facts which was made by the assessee and that such mis-statement or suppression of facts was willful. The law as it stood at the relevant time was that the suppression or mis-statement was actionable only if such suppression or mis-statement was willful. The law has been changed since and the word 'willful' may not cover both mis-statement and suppression of facts, today. Thus, it is evident that the order of the adjudicating authority assailed by the assessee i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. Long after the period of six months envisaged under Section 11A of the Central Excises And Salt Act, 1944 had expired, a show-cause notice dated February 9, 1994 was issued to the assessee and the assessee was called upon to explain why short-levy of duty amounting to Rs. 47,58,863/- should not be demanded and extracted from the assessee under Rule 9(2) of the Central Excise Rules, 1944 read with Section 11A of the said Act and penalty should not be imposed under Rule 173Q of the Rules of 1944. 4. In response, the assessee claimed that the demand was barred by limitation as the period envisaged under Section 11A of the said Act was six months. Further, it was the case of the assessee that in terms of the declaration, the assessee had hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of the Act or of the rules made thereunder with intent to evade payment of duty by such person... The assessee refers to a judgment reported at 1995 (75) ELT 721 (Cosmic Dye Chemical vs. CCE, Bombay) that interpreted such proviso to imply that the word willful would govern both mis-statement and suppression of facts . In other words, according to the Supreme Court, the period of limitation would be stretched to five years instead of six months only if there was a case of willful mis-statement or willful suppression of facts made out in the absence of there being any case of fraud or collusion. 7. In the present case, the show-cause notice made out a case of mis-statement or suppression of facts since the underlying theme of such s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mis-statement was willful. The law has been changed since and the word 'willful' may not cover both mis-statement and suppression of facts, today. 10. Thus, it is evident that the order of the adjudicating authority assailed by the assessee in the petition under Article 226 of the Constitution was in error of jurisdiction as it disregarded the assessee's objection as to limitation without holding that the assessee's conduct was such that amounted to willful mis-statement or willful suppression of facts. In the light of the Supreme Court judgment on such aspect of the matter and the failure on the part of the adjudicating authority to find that the assessee's conduct was willful in regard to the default, the period of lim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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