TaxTMI 
TaxTMI 
2014 (12) TMI 1086
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....in the first round of litigation CESTAT vide order No. C II/1780/WZB/2003 dated 07.7.2003 remanded the case back to the Adjudicating authority to pass the order on limitations claimed by the appellant and that on merits the case was decide against them. That the Adjudicating authority has held that mere 'Suppression of facts' on the part of the appellant is sufficient to invoke extended period of 5 years under the provisions of Rule 57-I of the Central Excise Rules, 1944. That as per the following case laws, Apex Court has held that the word 'wilful' used in Rule 57-I along with company of words like 'collusion' and 'mis-statement' should mean that credit availed by the appellant should be 'with intent to evade' :- (i) Cosmic Dye Chemical ....
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....e appellant. That as the credit was admissible but for not following the procedure, therefore, there cannot be any intention to evade payment of duty. It was thus strongly argued by the learned Advocate that extended period of 5 years is not applicable in this case and the demand is time barred. 3. Shri J. Nair (AR) appearing on behalf of the Revenue argued that the judgments relied upon by the appellant are with respect to Section 11A of the Central Excise Act, 1944 and will not be applicable to application of extended period under 57-I of the Central Excise Rules, 1944 when words like 'intent to evade' are not existing in Rule 57I. Learned AR relied upon the case law of Apex Court in the case of CCE, Jaipur vs. Raghuvar (India) Limited [....
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....ed to such credit and where the credit has already been utilized, why the amount equivalent to such credit should not be recovered from him: Provided that where such credit has been taken on account of willful mis-statement, collusion or suppression of facts on the part of a manufacturer or an assessee, the provisions of this Clause shall have effect as if for the words 'six months' the words five years were substituted. [Explanation. Where the service of the notice is stayed by an order of the Court, the period of such stay shall be excluded from computing the aforesaid period of 6 months or 5 years, as the case may be. 4.2 It is observed from the above provisions that the word wilful has been used before the words 'mis-statemen....
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....eceding the words 'mis-statement or suppression of facts which means with intent to evade duty. The next set of words 'contravention of any of the provisions of this Act or Rules' are again qualified by the immediately following words 'with intent to evade payment of duty'. It is, therefore, not correct to say that there can be a suppression or mis-statement of fact, which is not wilful and yet constitutes a permissible ground for the purpose of the proviso to Section 11A. Mis-statement or suppression of fact must be wilful. Observations made by the Apex Court in the case of Pushpam Pharmaceuticals Company vs. CCE, Bombay (supra) with respect to the words, 'suppression of facts' used in Section 11A of the Central Excise Act, 1944, are ver....
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.... mis-statement and will have to be understood to mean 'with intent to evade payment of duty'. The observations made by the Adjudicating authority that 'no intention to evade' is required for invoking extended period of 5 years, can not thus be appreciated as the correct interpretation of law. Though there is no dispute that provisions of Section 11A of the Central Excise Act, 1944 are independent of recovery machinery under Rule 57-I of the Central Excise Rules, 1944, but the ratio of the words 'suppression of facts' and 'wilful' as interpreted by the Apex Court will also be applicable to the recovery provisions of Rule 57-I of the Central Excise Rules, 1944. 5. It is also observed from Para -6 of the show cause notice dated 11.11.1994 tha....