Central Excise Appeal No. 11 of 2005. Case: Commissioner of C. Ex., Belapur Vs Amarnani Textiles Ind. Pvt. Ltd.. High Court of Bombay (India)
| Case Number | Central Excise Appeal No. 11 of 2005 |
| Counsel | For Appellant: Shri A.S. Rao, Adv. and For Respondent: Shri D.B. Shroff, Senior Counsel a/with Arun H. Mehta, Ms. Dolly M. Kotwani i/by M/s. Akshar Laws. |
| Judges | S.C. Dharmadhikari and Sunil P. Deshmukh, JJ. |
| Issue | Central Excise Act, 1944 - Section 11A |
| Citation | 2015 (319) ELT 442 (Bom) |
| Judgement Date | January 29, 2015 |
| Court | High Court of Bombay (India) |
Order:
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This appeal of the Revenue is challenging the order passed on 9th July, 2004 by the Customs, Excise and Service Tax Appellate Tribunal, West Zone, Bench at Mumbai (for short "the Tribunal") [2005 (179) E.L.T. 506 (Tribunal)].
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The respondent/assessee had approached the Tribunal being aggrieved and dissatisfied with the Order-in-Original dated 30th June, 1997 passed by the Commissioner of Central Excise, Mumbai-III.
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Mr. Rao, appearing on behalf of the Revenue would submit that the substantial question of law which has been framed by this Court at the time of admission of this appeal ought to be answered in favour of the revenue and against the assessee. For that purpose he submits that the show cause notice levelled specific allegations. If that show cause notice is read in its entirety and together with the statement of facts as emerging from Annexure "A" thereof, then, the Tribunal should have been aware that the foundation on which the said notice was issued fell clearly within the relevant legal provision. That relevant legal provision (Section 11A of the Central Excise Act, 1944) enables the revenue to recover the duty and if it is either short levied or erroneously levied within one year and if the reason for this short levy or erroneous levy is either a fraud or collusion or wilful misstatement or suppression or contravention of the provisions of the Act and the Rules, then, the extended period of five years could have been invoked and applied.
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Mr. Rao submits that the Tribunal completely omitted from consideration the allegations in the show cause notice founded on wilful misstatement of facts or suppression by the assessee. If the ingredients are thus made out and there was cogent satisfactory material based on which the adjudicating authority rendered its findings at pages 54, 55 and 64 of the paper book, then such findings of fact should not have been interfered with by the Tribunal. As a last fact finding authority the Tribunal was obliged to consider as to whether the adjudicating authority was in error in arriving at the conclusion that it reached. Further the conclusion was suffering from perversity or serious legal infirmities as would require interference by the Tribunal. The Tribunal has simply gone by the fact that the assessee took a particular stand and which stand was known to the Department/Revenue. A general finding of fact is then rendered by the Tribunal and it held that there is no suppression. Therefore, the extended period could not have been invoked. This finding of the Tribunal is vitiated according to Shri Rao and by error apparent on the face of the record.
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On the other hand, Mr. Shroff, learned Senior Counsel...
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