2019 (3) TMI 2073

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....incipal issue raised by the Revenue is that the writ petition could not have been entertained when the assessee had failed to avail of the appellate remedy because there was no jurisdictional issue involved and it could not have been the assessee's case that the assessee was condemned unheard. 3. The matter pertains to classification and at the relevant point of time, the appellant had furnished a declaration and claimed that the goods answered to a particular description that attracted 15% excise duty. Long after the period of six months envisaged under Section 11A of the Central Excises And Salt Act, 1944 had expired, a show-cause notice dated February 9, 1994 was issued to the assessee and the assessee was called upon to explain why....

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....ant date", by service of a notice on the person chargeable with the duty which had been short-levied. However, the proviso to Section 11A of the Act stretches the period from six months to five years in certain cases. For the purpose of the present proceedings, the proviso, as applicable, may be seen to provide for the extended period of five years if the duty had been short-levied or short paid "by reason of fraud, collusion or any willful mis-statement or suppression of facts, or contravention of any of the provisions of the Act or of the rules made thereunder with intent to evade payment of duty by such person..." The assessee refers to a judgment reported at 1995 (75) ELT 721 (Cosmic Dye Chemical vs. CCE, Bombay) that interpreted such p....

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....tion 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 willful and yet constitutes a permissible ground for the purpose of the proviso to Section 11A. Mis-statement or suppression of fact must be willful." 9. The law as it stood at the relevant time was that the suppression or mis-statement was actionable only if such suppression or mis-statement was willful. The law has been changed since and the word 'willful' may not cover both mis-statement and suppression of facts, today. 10. Thus, it is evident that the order of the adjudicating....