2025 (11) TMI 1096

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....ers, who were not the manufacturers, but are the proprietors concerned for engaging trading business and have received goods from another manufacturers. 3. Learned counsel appearing on behalf of the petitioners has relied on Provisions of Section 11A of the Act to submit that any notice issued after a period of five years from the relevant date, would have no force and the same deserves to be quashed on the same that count alone. 4. Learned counsel for the petitioners relies on the judgment passed by the Hon'ble Apex Court in the case of "J.K. Spinning & Weaving Mills Ltd. & Anr. vs. Union of India & Ors." 1987(32) E.L.T. 234 (S.C.). 5. We have considered the submissions and also perused the judgment passed by the Apex Court. 6. It is a case where the petitioners have shown themselves as manufacturers and supplied goods to the retailers and also collected GST, the so called manufacturers from which they alleged to have received goods, were never paid any GST nor any invoice was issued in their name. The question, therefore, arises whether the petitioners can be said to be the retailers or suppliers, and not the manufacturers. The issue requires to be examined by the Exc....

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.... or has been short-levied or short-paid or erroneously refunded, by the reason of- (a) fraud; or (b) collusion; or (c) any wilful misstatement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by any person chargeable with the duty, the Central Excise Officer shall, within five years from the relevant date, serve notice on such person requiring him to show cause why he should not pay the amount specified in the notice along with interest payable thereon under Section 11AA and a penalty equivalent to the duty specified in the notice. [* * *] (7A) Notwithstanding anything contained in sub-section (1) or subsection (3) or sub-section (4), the Central Excise Officer may, serve, subsequent to any notice or notices served under any of those subsections, as the case may be, a statement, containing the details of duty of central excise not levied or paid or short-levied or short-paid or erroneously refunded for the subsequent period, on the person chargeable to duty of central excise, then, service of such statement shall....

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....interest or penalty is payable under this Act shall be counted from the date of the order of the appellate authority or tribunal or court in respect of such increased amount. (14) Where an order determining the duty of excise is passed by the Central Excise Officer under this section, the person liable to pay the said duty of excise shall pay the amount so determined along with the interest due on such amount whether or not the amount of interest is specified separately. (15) The provisions of sub-sections (1) to (14) shall apply, mutatis mutandis, to the recovery of interest where interest payable has not been paid or part paid or erroneously refunded. [(16) The provisions of this section shall not apply to a case where the liability of duty not paid or short-paid is self-assessed and declared as duty payable by the assessee in the periodic returns filed by him, and in such case, recovery of non-payment or shortpayment of duty shall be made in such manner as may be prescribed.] Explanation 1.- For the purposes of this section and Section 11-AC, - (a) "refund" includes rebate of duty of excise on excisable goods exported out of India or ....

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.... where any fraud is found to have been played, the authorities would not be deprived from taking appropriate action against the concerned persons. The Hon'ble Apex Court in the case of "Bhor Industries Ltd. vs. Commissioner of Central Excise, Mumbai" 2016 16 Supreme Court Cases 643 has held in Para Nos. 2 & 3, which reads as under : "2. The period in question is February, 1990 to February, 1991 and the show-cause notice was issued on 28.2.1995. In the show-cause notice it was alleged that the assessee had made misstatement to the effect that it would be clearing the goods at a higher rate i.e. as per the classification approved by the Revenue but it would doing so under protest, meaning thereby the assessee would be disputing the classification as approved by the Revenue. However, in spite thereof the goods were not cleared as per the classification approved by the Revenue but at a lower rate on the basis of classification which the assessee thought was the correct classification. Thus, on the basis of the misstatement larger period of limitation was invoked. We find that action of the Commissioner on limitation has been upheld by the Tribunal as well after giving the deta....