2006 (7) TMI 213

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....office was at Magadi Road, Bangalore prior to April 1999. It was taken over by M/s Bripanil Industries Limited. Search was conducted on 6-8-1996, 7-8-1996 and 8-8-1996. It resulted in seizure of incriminating documents at the above said premises. The Officer noticed shortage of stock of grey tyre cord fabrics valued at Rs. 5,96,897/- and the shortage of dipped tyre cord fabrics valued at Rs. 48,73,743/-. Mahazar was drawn. Show cause notice was issued on 31-8-2001 requiring the assessee to show cause as to why basic duty and the additional duty should not be demanded and penalty imposed on the assessee. Reply was submitted. Thereafter, an adverse order was passed by the Additional Commissioner of Central Excise. Aggrieved by the same, an a....

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....rence. He would strongly rely on a judgment of the Tribunal in Nizam Sugar Factory v. Collector of Central Excise, Hyderabad, 1999 (114) E.L.T. 429 (Tribunal), with regard to the extended period of limitation. Learned counsel therefore says that interference is necessary. He would also rely on a judgment of the Supreme Court in M/s. Jaiprakesh Industries Limited v. Commissioner of Central Excise, Chandigarh, 2002 (146) E.L.T. 481 (S.C.) = AIR 2003 SC 349. 5.Per contra, learned Counsel for the respondent would place before us subsequent judgment of the Supreme Court reported in Nizam Sugar Factory v. Collector of Central Excise, A.P., 2006 (197) E.L.T. 465 (S.C.), to say that the findings of the Larger Bench of the Tribunal in Nizam Sugar F....

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....date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice: "Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, as if for the words, `one year', the words "five years" ....

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....in the absence of factual foundation in terms of the show cause notice. There should be a positive application of mind and positive finding with regard to rejection of extended period under Section 11A of the Act. Mere presumption would not give any such jurisdiction for extended period of limitation. 10.It is further seen that the visit to the premises was on 6-8-1996 and a notice was issued after five years i.e. on 4-9-2001. Department relies on a larger Bench ruling of the CEGAT reported in 1999 (114) E.L.T. 429 (Tri. - LB) with regard to the extended time in the light of Section 11A of the Act. `Relevant date' was considered to mean any reference date of knowledge, and that knowledge itself has no relevance, according to the Larger Ben....