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TMI Blog2024 (12) TMI 1190X X X X Extracts X X X X X X X X Extracts X X X X ..... ctory of manufacture to their C & F depots for further sale from such depot. The appellant are required to adopt the value as provided under Rules 7 of Central Excise Valuation Rules, 2000 read with section 4 of the Central Excise Act, 1944 for determination of assessable value of their Lubricating Oils and other products. 2. The appellant on their own vide their letters dated 18.11.2009, 04.04.2010, 12.08.2011, 23.12.2011, 05.09.2011 and 20.01.2012 have submitted relevant information to the jurisdictional assistant / deputy Commissioner of Central Excise for the period pertaining to April - 2008 to December - 2012. The appellant have submitted to the Jurisdictional Assistant Commissioner that in respect of certain goods they have made excess payment of the duty while clearing the goods from ex-C & F depot and in some cases the sale price ex-C & F was less than the price to adopted for ex-C & F depots. It has been contention of the appellant that there was excess payment of duty in respect of some goods cleared for sale ex-C & F depot. The appellant submitted that where they have paid excess duty amount, same has been adjusted against their short payment of duty. The learned advoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emand which have been issued by show cause notice dated 16.04.2013 is barred by normal period of limitation under section 11A (4) of the Central Excise Act, 1944 and therefore same legally not sustainable. The learned advocate has relied upon on the following decisions to support his case. Saying that since the department was fully aware about the sale pattern of their manufactured products and the appellant have informed them in detailed vide their letter dated 18.11.2009 to latter dated 20.01.2012 therefore entire period is barred by period of limitation. The learned advocate has relied upon following decision. * Anand Nishikawa Co. Ltd. Vs. Commissioner of Central Excise Appeal, Meerut [2005 (188) ELT 149 (SC)] * Continental Foundation JT. Venture - 2007 (216 ELT 177 (SC) * Nestle India Pvt Ltd V. CCE [2009-TIOL-26-SC-CX = 2009 (235) ELT 577 (SC)] * Atul Kaushik 2015 (330) ELT 417 (Tri.-Del.) * Commissioner V. Oracle India Pvt Ltd.- 2016 (342) ELT A40 (SC) * Uniflex Cables Ltd. - 2011 (271) ELT 161 (SC) 3. We have also heard the departmental representative who has reiterated the findings given in the impugned order-in-appeal. 4. Having heard both the sides we take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iso of Section 11A of the Act as it stands now. It clearly says that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reasons of fraud, collusion or any willful 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, the provisions of this sub-section shall have effect as if for the words one year' the words 'five years were substituted. 12. A bare reading of the provisions made under Section 11A(1) together with the proviso to it, it is abundantly clear that ordinarily notice to show cause has to be issued within one year from the relevant date However, in order to attract proviso to Section 11A of the Act, that is to say, for extended period of limitation within 5 years from the relevant date, it is necessary to be satisfied that the non-levy, short-levy, or erroneous refund has occurred on account of either of the following:- (1) fraud (2) collusion, (3) willful mis-statement or suppression of facts, (4) contravention of the Excise Act or Rules with an intent to evade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ix months or one year or five years, as the case may be from the relevant date but it is evident that by the amendment in Section 11A of the Act in the year 2000, in cases of approval also of the classification lists supplied by the assessee and accepted by the department from time to time, it would be open to the Central Excise Officer to initiate a recovery proceeding against the assessee under Section 11A of the Act within six months or one year or five years, as the case may be, from the relevant date. That being the position, we are, therefore, of the view that in spite of some decisions of this Court or other High Courts of India holding that a recovery proceeding under Section 11A of the Act could not be initiated for recovery of duties when the classification lists supplied by the Assessee were approved by the Department from time to time, due to the 2000 amendment in Section 11A recovery proceedings can now be initiated even when the classification lists supplied by the assessee were approved by the department from time to time. In the case of Collector of Central Excise, Baroda v. Cotspur Ltd [1999 (113) ELT. 353 (S.C.)), it was held that the levy of excise duty on the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w. However, another two-Judges Bench decision of this Court took a contrary view and held that the amendment had not altered the basis of the judgment in Cotspun Ltd.'s case (supra) and on a reference from that Bench, the matter came up for consideration in the case of ITW Signode India Ltd. v. Collector of Central Excise (2004 (3) SCC 48), before a three-Judge Bench. In that decision, the amendment was not found to be ultra vires of the Constitution and it held that the amended Section 11A of the Act is a valid piece of legislation. 19. On behalf of the Appellant, learned Counsel Shri V. Sridharan had drawn our attention to proviso to Section 11A of the Act which has already been noted herein earlier and contended that extended period of limitation as mentioned in proviso to Section 11A of the Act in the facts of this case could not be attracted and the Central Excise Officer could not invoke proviso to Section 11A of the Act. Before we examine this submission of the learned Counsel for the appellant, we must note that the CEGAT in the impugned order held that the Central Excise Officer in the facts of this case was entitled to invoke extended period of limitation within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... never disclosed to it that they were carrying on process of notching, slitting, punching, slotting etc on rubber profiles and if they had done so it would amount to "further working" thereby rendering the products classifiable under sub-heading 4016. 19 and not classifiable under sub-heading 4008 29. It was also the case of the Revenue that these operations came to the knowledge of the Revenue only when an investigation commenced in the present matter by the Directorate General of Anti-Evasion which resulted in the issue of the show cause notice dated 19th October, 1995. 23. In the impugned order, CEGAT on perusal of the correspondence between the appellant and the appellant with respect to post-forming processes like department was unable to find any disclosure in writing by notching, drilling etc. From the materials on record which were produced before the authorities and also from the orders of the CEGAT and the Commissioner, it can be seen that the department had the opportunity to inspect the products of the appellants and in fact, the factory of the appellants was inspected by them. It may be true that the appellants might not have disclosed the post-forming process in det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by us. This Court in the case of Pushpam Pharmaceutical Company v Collector of Central Excise, Bombay [1995 Supp (3) SCC 462), while dealing with the meaning of the expression 'suppression of facts in proviso to Section 11A of the Act held that the term must be construed strictly, it does not mean any omission and the act must be deliberate and willful to evade payment of duty. The Court, further, held:- "In taxation, suppression of facts") can have only one meaning that the correct information was not disclosed deliberately to escape payment of duty. Where facts are known to both the parties the omission by one to do what he might have done and not mat he must have done, does not render if suppression" 27. Relying on the aforesaid observations of this Court in the case of Pushpam Pharmaceutical Co. v. Collector of Central Excise, Bombay [1995 Suppl (3) SCC 462], we find that "suppression of facts can have only one meaning that the correct information was not disclosed deliberately to evade payment of duty, when facts were known to both the parties, the omission by one to do what he might have done not that he must have done would not render it suppression. It is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21) ECR 129 (SC)], this Court held that the extended period of limitation was not available to the Department as classification lists filed by the Assessee were duly approved by the authorities from time to time. In that decision this Court followed its earlier judgment in OK. Play (India) Ltd. v. Collector of Central Excise, Delhi-III (Gurgaon) [2005 (66) RLT 667 (SC)], held that in cases where classification lists filed by the Assessee were duly approved, the extended period of limitation would not be available to the Department. 30. For the reasons aforesaid we are of the view that the CEGAT was not justified in holding that the extended period of limitation would be available to the Department for initiating the recovery proceedings under Section 11A of the Act on a finding that there was suppression of facts by the appellant. Accordingly, it was not open to the Excise authorities to invoke proviso to Section 11A of the Act and therefore, the demand of the Revenue must be restricted to six months prior to the issue of notice dated 19-10-1995 instead of five years. In view of this conclusion, it is not necessary for us to consider the question of applicability of the classifi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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