TaxTMI 
TaxTMI 
1985 (10) TMI 235
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....with effect from 1-3-79 because of the changes brought about by the Budget of 1979. It is also not disputed that goods have been cleared without payment of the duty leviable under that Item. 3.  The learned Advocate for the appellant urged that there can be no demand without a process of assessment and in this connection, he relied on the decision of the Supreme Court in the case of 'Assistant Collector of Central Excise., Calcutta v. National Tobacco Co. of India Limited.' (1978 E.L.T. 416 at paragraphs 21 and 22). Reference was also made to the case of 'N.B. Sanjana, Asstt. Collector of Central Excise, Bombay and others v. The Elphinstone Spinning and Weaving Mills Co. Limited' (1978 E.L.T. J 399, at page 406) where the words "duty paid" occurring in Rule 10 have been interpreted as referring to duty which ought to have been paid and even when no duty has been assessed, the entire duty when subsequently assessed will be a short levy. 4. Continuing, the learned Advocate urged that the period of five years can be invoked only if there is fraud, collusion or any wilful mis-statement or suppression of facts or contravention of any of the provisions of the Act or the R....
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.... Rule will have no applicability in dealing with a section of the Act. In this connection, he referred to the case of Manapolli Venkatanarayana v. State of Andhra Pradesh - 10 (STC) 524 - where the question was whether the power given to a Commercial Tax Officer could be exercised by the Deputy Commissioner and it was decided that it could not be. 7. The learned Senior Department Representative observed that the theory of Noscitur a sociis would apply only in the case of ambiguity in the language of a provision of law. There is no ambiguity in the wording of Section 11 A; 'Suppression' is a clear word about which there can be no two views. The changes were brought about by the Budget. The contents of Budget are very widely published in all the media. An appellant of the status of Cheran Engineering Corporation cannot plead that they were not aware of the budgetary changes if proper care had been exercised. 8. The learned SDR observed that the order of the Collector does not invoke Section 11 A but is one under Rule 9(2). So the submissions in regard to Section 11 A will have no direct validity. In regard to the extended period the case of 'Mac Laboratories' has been....
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....Rule 9(2) read with Section 11A of the Act. While Section 11A refers to recovery of duties not levied or not paid or short levied or short paid or erroneously refunded, Rule 9 deals with removal of excisable goods from any place where they are produced. It is stipulated therein that such removal shall not take place until the excise levy or duty leviable thereon is paid in such manner as prescribed in the Rules. If goods are so removed, Rule 9(2) provides that on a written demand being made within the period specified under Section 11 A of the Act by the proper officer, the duty shall be paid. 'Proper officer' has been defined in Rule 2(xi) of the Central Excise Rules as "the officer in whose jurisdiction the land or premises of the producer of any excisable goods ......... are situated". This definition of 'proper officer' is large enough to include all the Central Excise officers having jurisdiction over the factory of the appellant. Accordingly, it would include the Collector himself. Again Rule 6 specifically provides that Collector may perform all or any of the duties, or exercise all or any of the powers, assigned to an officer under the Rules. Show Cause Notice is one of dem....
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....en paid' and 'nil' levy would be a levy. The facts of that case are different from the present one. 14. We now turn to whether there has been suppression of facts which would enable the Department to make a demand for a period of five years from the date of the demand rather than for a period of six months. The rule of noscitur a sociis would not seem to be relevant in the context of the words occurring in Section 11A (as applicable to Rule 9). As aptly pointed out by a Bench of this Tribunal in "Shriram Pistons and Rings case' - 1983 E.L.T. 1927 - the term 'fraud' as defined in Section 17 of the Contract Act would encompass both wilful statement and suppression of facts; if therefore, one were to go by the definition of 'fraud' as occurring in the Indian Contract Act, 1872, there would be no need for reference to the other phrases in Sec. 11 A. One has to read the provisions of an Act so as to give some meaning, if possible, to the various expressions occurring in a Section and not to give a meaning as would render particular phrases otiose or superfluous. This would mean that the term 'fraud' will have to be understood in a general way and not necessarily in the way it ha....