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TMI Blog2007 (10) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... ) which has been presently substituted as Custom, Central Excise Service Tax Appellate Tribunal to refer the question of law as mentioned in the petition. Though many a question has been stated for the purpose of calling for a reference from the order of the Tribunal but Mr. Brain Da Silva, Sr. Counsel being assisted by Mr. Gaurav Sharma, Advocate, confined the submission to call for the following question of law : "Whether the Tribunal justified in law by expressing opinion that extended period of limitation as postulated u/s 11 A of the Central Excise Act, 1944 is not attracted despite the factum there has been suppression of material fact arising out of the confessional statement made by the Chief Executive of the Assessee Company?" 3. The facts necessitated to be exposited are that the assessee is engaged in steel fabrication of parts of transformers and motors under Chapters 84 85 of the Schedule to the Central Excise Act, 1985 and the Assessee was availing the facility of Modvat credit on inputs under Rule 57-A of the Central Excise Rules, 1944 (hereinafter referred to as 'rules') during the period April, 1989 to April, 1993. The assessee, as set fourth, had transferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s have been received in piecemeal on account of their being a small scale industrial unit and duty paying documents were received by them at the subsequent time; that the finding of the lower appellate authority is that there was no correlation with the accounting of the inputs actually received in piecemeal and what has been recorded in the RG-23A Part-I register was not acceptable; that the statement of the Chief Executive of the Company has been misconstrued as the admission of guilt whereas the said officer of the Company stated about the correct position relating to the facts; that the extended period of limitation stipulated u/s 11A(1) of the Central Excises Salt Act cannot be made applicable inasmuch as there has been no fraud or suppression and in any case there has been no intention to evade any tax; that the filing of the duty paying documents received subsequent to the receipt of Modvatable inputs in the factory of the manufacturer tantamount to compliance with the provisions of Rule 57-G of the Central Excise Rules; that the authority below has erroneously imposed the penalty in the absence of mens rea; and that the facts on record had not been scrutinized in proper p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement 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 or his agent, the provisions of this sub-section shall have effect, as if, for the words "six moths", the words "five years" were substituted. Explanation. - Where the service of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of six months or five years, as the case may be.' 10. The aforesaid provision came to be interpreted by the Apex Court in Tamil Nadu Housing Board v. Collector of Central Excise, Madras - 1994 (74) E.L.T. 9 (S.C.) wherein a two-Judge Bench of the Apex Court has held thus : "A bare reading of the proviso indicates that it is in nature of an exception to the principal clause. Therefore, its exercise is hedged on one hand with existence of such situations as have been visualised by the proviso by using such strong expression as fraud, collusion etc. and on the other hand it should have been with intention to evade payment of duty. Both must concur to enable the Excise Officer to proceed under this proviso and invoke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has been held in paragraphs 10 and 11 as under : "10. Therefore, we have to find out whether there was any fraud, collusion, wilful mis-statement or suppression of facts for the Department to be justified to claim duty beyond a period of six months. This is a question of fact. It was found by the Tribunal that it was not possible for the appellant to contend that the appellant had made a correct statement. The Tribunal noted that the appellant could hardly contend that it discharged the onus of making correct declaration if it had withheld the description which was commonly used in respect of the goods not only by itself, but also by those from whom it bought or to whom it sold the products. The appellant itself was both buying and selling these nuts and as such there was no conceivable reason why these nuts were described as end-fittings in the declaration to the Department. It may be noted that in the declaration it was so described. The Tribunal was of the view, and it cannot be said not without justification that these goods should have been described as nuts because the appellant itself had treated these as nuts. Therefore, from this conduct suppression is established. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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