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TMI Blog1987 (3) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... Cegat)J (Annexure 28 to the petition). 2. The petitioner unit is engaged in the business of manufacture of absestos cement pipes and the company carries on the business of manufacture of P.C.C. poles (Prestress Cement Concrete poles). The case of the petitioner unit is that it continued to pay the excise duty until the enforcement of the Notification No. 71/78, dated 1st March 1978. (Annexure 2 to the petition). In para 7 of the petition, it is averred that the petitioner unit was exempted from payment of Central Excise Duty w.e.f. 1.4.1978 in terms of notification (Annexure 2), as the excisable goods up to an aggregate value not exceeding Rs. 5 lakhs were exempted thereunder. The petitioner, therefore, submitted on 24th March 1978, a revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice that "......it becomes clear that the aggregate value of clearances of all excisable goods by Hind Cement Products Limited Rampur or petition, viz. M/s. Hind Ceramics Limited Rampur for home consumption from one or more factories during the preceding financial year i.e. 1978-79 have exceeded Rs. 20 lacs...." The aggregate value of the excisable goods manufactured by the petitioner and by the company having exceeded Rs. 20 lacs, the Collector Central Excise levied excise duty on the petitioner amounting to Rs. 65817.63P under Rule 9(2) of the Central Excise Rules, 1944 (for short the Rules 1944 and a penalty of Rs. 5 lacs by the order (Annexure 24 to the petition). This order was appealed against by the petitioner and then the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-rule (2) of the Rules 1944, the excise duty and penalty may be demanded within the period specified in Section 11A of the Central Excises and Salt Act, 1944(briefly the Act, 1944). Section 11A(1) says that when any duty of excise has not been paid or levied, then Central Excise Officer may within 6 months from the relevant date serve notice on the person liable to pay duty. The proviso to sub-section (1) of Section 11A extends the limitation of six months to 5 years, if the excise duty has not been levied or paid by reason of fraud, colusion or any wilful mis-statement or suppression of facts or contravention of any provision of the Act and the Rules that intend to evade the payment of duty. Sri Mathur adverted to the Tribunal's finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial, it is amply clear that all through the departmental representative as well as the Tribunal setup the case of mis-statement and suppression of facts. The contention of Sri Mathur is that the case so set up by the departmental representative and the tribunal is contrary to record and therefore, the penalty imposed beyond the period of six months as envisaged by sub-section (1) of Section 11A of the Act 1944, deserves to be quashed. I find force in this submission of Sri Mathur. The submission made by departmental representative before the Tribunal are undoubtedly misconceived. The petitioner continued to pay excise duty on the manufacture of asbestos cement pipes until the enforcement of the notification (Annexure 2) which exempted the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he mere fact that the petitioner did not pay the duty which it was liable to pay after the enforcement of the notification (Annexure 8), does not lead to the conclusion that the petitioner wilfully misstated or suppressed the facts. The case of the petitioner was that the notification (Annexure 8) was not within its knowledge and, therefore, the duty was not paid simply because the duty after the notification (Annexure 9) having come into force, was not paid, no inference can be drawn that the petitioner wilfully mis-stated or suppressed the facts. The record shows that no fact was suppressed or mis-stated by the petitioner. I, therefore, agree with Sri Mathur that no penalty was exigible under the proviso to sub-section (1) of Section 11A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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