9911796707
TMI Blog1992 (7) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod from 1st May 1988 to August 1988. The appellant petitioner has also challenged the said show cause notice. Thus, in the writ petition the Show Cause Notices dated 23-5-1988 and 16-9-1988 issued by the Superintendent of Central Excise, Yeshwanthpur Range, Bangalore are challenged. 3. The learned Single Judge held that as the Show Cause Notices were issued within a period of six months from the date of assessment, it did not affect the jurisdiction of the Superintendent of Central Excise irrespective of the fact that the Show Cause Notices averred short levy by suppression. Accordingly, he dismissed the writ petition keeping it open to the appellant-petitioner to urge all the contentions before the authority who had issued Show Cause Notices. Aggrieved by the decision of the learned Single Judge, the petitioner has come up in this appeal. 4. Shri Chander Kumar, learned Counsel appearing for the appellant, contended that as the Show Cause Notices were issued on the ground that short levy was due to suppression they attracted the provisions of sub-section (1) of Section 11A of the Act, therefore, the authority competent to issue such notices was the Collector of Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he show cause notices. It was also submitted that the deletion or withdrawal of the offending words contained in the show cause notices would amount to deciding that there was no suppression, and, such decision the Central Excise Officer was not competent to take as the Collector of the Central Excise alone could decide whether there was a short levy by suppression. Therefore, it is not at all permissible to delete the offending words and proceed with the show cause notice without those words. 7. In the light of these contentions, following points arise for consideration: (1) What is the true scope of sub-section (1) of Section 11A of the Act? (2) Whether it is open to the Superintendent of the Central Excise (Central Excise Officer) to proceed with the show cause notice by deleting the words "and suppressed such a fact from the department with an intent to evade payment of Central Excise duty" from the show cause notices? POINT NO. 1: 8. Sub-section (1) of Section 11A of the Act with its proviso, reads thus: "11A : RECOVERY OF DUTIES NOT LEVIED OR NOT PAID OR SHORT LEVIED OR SHORT PAID OR ERRONEOUSLY REFUNDED : (1) When any duty of excise has not been levied or paid or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under these two provisions is also different. For exercising the power under the proviso the grounds stated in the proviso must exist. The proviso states the reasons on which there is no levy or no payment or short levy or short payment or erroneous refund of duty of excise. The reasons stated therein are "fraud, collusion, or any wilful mis-statement or suppression of facts or contravention of any of the provisions of the Act or the Rules made thereunder." with intent to evade payment of duty. In such cases, the proviso says that for the words 'Central Excise Officer', the words 'Collector of Central Excise and' and for the words 'six months', the words 'five years' may be read or substituted. Therefore, it is clear that the proviso to sub-section (1), as already pointed out, can be enforced independent of the provisions contained in the first portion of sub-section (1). Similarly, the operation of the first portion of sub-section (1) does not depend upon the provisions contained in the proviso thereto. Though the proviso deals with non-levy or non-payment, short levy or short payment or erroneous refund of the Central Excise Duty, but the reasons on the basis of which duty of ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase that the proviso to sub-section (1) of Section 11A of the Act operates independent of sub-section (1) and it can be enforced independently, we consider it not necessary to refer to the aforesaid two decisions. 10. Consequently, we hold that the Superintendent of Central Excise could not have issued the show cause notices on the ground that there was short levy and short-payment of central excise duty due to suppression, as it was the Collector of Central Excise alone who was competent to issue show cause notices for short levy or short payment of excise duty on the ground of suppression. Point No. 1 is answered accordingly. POINT NO. 2 11. The next question for our consideration is whether the show cause notices are liable to be quashed in the light of the finding on point No. 1. It is contended by Sri Ashok Haranahalli, learned Standing Counsel for the Central Government that as the Superintendent of Central Excise had issued show cause notices within a period of six months and as there is no prohibition contained in the Act either to withdraw such notice reserving liberty to issue a fresh notice or to amend such notice or delete any portion of such notice, the offending ..... X X X X Extracts X X X X X X X X Extracts X X X X
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