2001 (1) TMI 399

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....he Department of Excise. Nor was duty paid on that product. Therefore, nine show-cause-notices were issued by the Jurisdictional Assistant Collectors, each covering periods less than six months invoking provisions contained in main Section 11A. Total duty demanded under the above mentioned nine show cause notices came to Rs. 1,62,56,434/-. 2. Appellant disputed the claim put forth by the Department in the above-mentioned nine show cause notices. They also claimed benefit of Notification No. 217/86-C.E. dated 2-4-1986. Adjudicating Authority, namely, Commissioner negatived that point raised by the appellant and confirmed the duty demanded in the show cause notices totalling Rs. 1,62,56,434/-. The order passed by the Adjudicating Auth....

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.... go to show that the concerned Officer was invoking the ingredients of Proviso to Section 11A. According to Counsel, such show cause notices issued by Assistant Collectors are to be treated as incompetent and are to be quashed in view of the decision of the Supreme Court in Collector of Central Excise, New Delhi v. M/s. Frick India Ltd. [Civil Appeal No. 4421 and 4422/2000, decided on 14-12-2000]. 4. Objectionable parts of the show cause notice issued in the instant case are the following :- "It is therefore, clear that M/s. Hindustan Zinc Ltd. Debari have not filed any classification list with the Department with regard to manufacture of silver chloride and have, thus, suppressed the facts of production and the said products have not....

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....how cause notice, it was argued, it must be taken to be qualified by the word "wilful" seen in the Proviso. Consequently it is submitted that the word "suppressed" should be taken to have its meaning in the light of the word preceding it, namely, "wilful". So the question is whether in understanding the meaning of the word "suppressed" in the show cause notice its meaning while used in the Proviso to the Section is to be adopted? 7. In Pushpam Pharmaceuticals Company v. Collector of Central Excise, Bombay [1995 (78) E.L.T. 401 (S.C.)]. Their Lordships of Supreme Court while dealing with the Proviso to Section 11A(1) observed that the words used in the Proviso were in the company of strong words like fraud, collusion, wilful etc. In ....

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....that the show cause notice was not in relation to anything done by the assessee for a period beyond six months. Officer was confining his claim to the period covered by the main Section itself. The appellant has no case that he ever paid Excise Duty in relation to the quantity of silver chloride produced by it. No duty was paid on production of a dutiable product. In that sense there was evasion of duty. That fact was alone stated in the show cause notice. According to us, on the facts and circumstances of this case, the use of the words "suppressed" and "evaded", seen in the show cause notice, cannot be taken to bring that show cause notice within the ambit of the Proviso of Section 11A(1). Nor can it be taken that the Assistant Collector ....