2023 (1) TMI 105

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.... Excise Rules, 2002 (CE Rules) read with Sections 11A and 11AB of the Central Excise Act, 1944 (CE Act). 2. The admitted position is that the period for which the demand was sought to be raised by virtue of the above SCN was 2004-05 to 2006-07. 3. For some reason, which is not clear, the case appears to have been transferred to 'Call Book' on 7th February, 2011. Meanwhile, on 14th May, 2010, the Petitioner replied to the SCN. 4. The Department then slept over the matter for a long period of 5 years, after which on 15th July 2016, it was suddenly decided to retrieve the matter from the Call Book. On 26th May 2017, a notice was issued to the Petitioner fixing 1st June, 2017 as the date of personal hearing. 5. On 31st May 2017, the Petitio....

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....vealed that they have not accounted for finished product as per input output ratio declared by them during the year 2004-05 and 2005-06, and thereby it appears that they have willfully contravened the provision of Central Excise Rules, 2002 in as much as they have cleared/despatched HCFC without payment of duty, without observing Central Excise procedures, thereby provision to section 11A and 11AB of the Central Excise Act, 1944 is being invoked for the said clandestine removal. So invoking of provision of extended period of limitation is justified." 7. Mr. C.R. Das, learned counsel appearing for the Petitioner relies on the decision of this Court in Maxcare Laboratories Ltd. v. Joint Commissioner, CGST, Central Excise & Custom 2021 (378) ....

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....at it is bad on the ground of delay and it will be for the relevant officer to consider the question whether in the facts and circumstances of the case notice or demand for recovery was made within reasonable period. No hard and fast rules can be laid down in this regard as the determination of the question will depend upon the facts of each case." 9. Likewise, in CCE v. Cemphar Drugs and Liniments 1989 (40) ELT 276 (SC), the Supreme Court observed as under: "In order to make the demand for duty sustainable beyond a period of six months and up to a period of 5 years in view of the proviso to subsection 11A of the Act, it has to be established that the duty of excise has not been levied or paid or short-levied or short-paid, or erroneousl....