1992 (3) TMI 71

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....ow cause notice is dated 16-9-1988 and relates to the period between May 1988 to August 1988. Indisputably the show cause notices in question are issued within six months from the relevant date referred to in Section 11A of the Act. These two show cause notices have been issued by the Superintendent of Central Excise. 2. It is contended on behalf of the petitioner that the basis for the issue of Show Cause notices being short levy of excise duty as a result of suppression of facts or violation of Act or the Rules with an intent to evade payment of excise duty the proviso to Section 11A(1) of the Act is attracted, and the Collector of Central Excise alone can exercise the powers in relation to such matters and not any officer of lower gra....

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.... relevant date as defined therein. The proviso to Section 11A(1) is to the effect that notice can be issued within five years from the relevant date, if the non-levy, short payment or short levy or erroneous refund has resulted on account of (a) fraud, or (b) collusion, or (c) wilful mis-statement or suppression of facts, or (d) contravention of the Act or Rules with intent to evade payment of duty. These four elements refer to a state of mind and would apply where an assessee has knowingly or deliberately done some thing or omitted to do something which had led to non-levy, short levy or erroneous refund of duty. To apply Sec. 11A(1) without reference to proviso, notice has to be issued within a period of six months from relevant date and ....

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....should be the state of mind referred to by me earlier and secondly the notice should be issued by the Collector. Thus in effect the proviso is attracted only in cases where extended period of limitation is invoked and not the normal period of six months from relevant date. 6. In the decision referred to by the learned Counsel for the petitioner in Gujarat State Fertiliser Company Gujarat High Court did not consider the effect of issue of notice where it is issued by an Officer inferior to Collector within a period of six months from the relevant date because in that case clearly proviso was attracted as the notice was issued beyond the period of six months from relevant date. For the reasons already stated the view expressed in Partap Ra....