M-S. EASLAND COMBINES, COIMBATORE v. THE COLLECTOR OF CENTRAL EXCISE, COIMBATORE

Citation: [2003] 1 S.C.R. 98

Court: Supreme Court of India

Bench: M.B. SHAH, D.M. DHARMADHIKARI

Judgment text

) MIS. EASLAND COMBINES, COIMBATORE v. t- THE COLLECTOR OF CENTRAL EXCISE, COIMBATORE JANUARY 13, 2003 (M. B. SHAH AND D. M. DHARMADHIKARI, JJ. } ''t~- Central Excises andSalt Act, 19441Central Excise Rules, 1944-Section /JA andfirst proviso to sub-section (1) ofsection /JAi Rule 9(2): Section 11A-Amendment-Retrospective effect of-Held: Show cause notice could be issuedfor correcting errors or mistakes in approval, acceptance or assessment relating to the rate ofduty on or valuation ofexcisable goods under the provisions of the Act or the Rules made thereunder within the >prescr.

ibed period Recovery of differential duty-Extended period of /imitation-When attracted-Held: Can be invoked when duty could not have been paid, shortlevied or short paid or erroneously refunded because offraud, collusion, wilful mis-statement, suppression offact or contravention ofany provision or rules-Onfacts, mistaken assumption ofemployee ofassessee that as company --4registered at one place it was not required to be registered at other place is not wilful mis-statement or suppression offact for attracting extended period' oflimitation thus tribunal erred in invoking extended period of /imitation. The question which arose for consideration in these appeals -is with regard to the effect of the amendment in section l lA of Central Excises and Salt Act, 1944 and whether there was any ground for invoking proviso to sub-section (1) of Section 1IA of the Act. J.

-- Appellant-assessee contended that once the excise duty is collected on the basis of the approved classification, price list or on the basis of the assessment order it cannot be held that there was short levy of excise duty; (' that in such cases levying of excise duty on the basis of approved classification or final assessment order is the correct levy and, therefore, the amended Section 1IA would not be applicable; that the amendment . ,. , tin Section t IA of Act does not change the basis or the foundation of the ( judgment rendered in Cotspun 's case holding that the levy of excise duty on the basis of approved classification list is not short levy and the EASLAND COMBINES v. COLLECTOR OF CENTRAL EXCISE 99 differential duty cannot be recovered; that presuming that the approved price list was erroneous or order was erroneous because of mistake of the ,..

department's officer, assessee cannot be put to loss, otherwise it would cause hardship to the assessee; and that this power can be misused by invoking the proviso to Section 11(1), merely stating that duty of excise has been short levied because of wilful statement or suppression of facts. Disposing of the appeals, the Court y HELD: I. I. In view of the amendment of Section 11-A(I) of the Central Excises and Salt Act, 1944 show cause notice could be issued for correcting errors or mistakes in approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under the provisions of the Act or the Rules made thereunder within the prescribed period and thus the decision rendered by this Court in Cotspun 's case that that the levy of excise duty on the basis of approved classification list is ~. not short levy and the differential duty cannot be recovered would not be a good law. [110-G, H; 114-B] Collector ofCentral Exicse, Baroda v. Cotspun ltd.

, (1999) (113) ELT 353, held inapplicable. Rainbow Industries (P) ltd v. Collector ofCentral Excise, Vadodara, (1994( 6 SCC 563; Ballarpur Industries ltd v. Asstt. Collector ofCustoms & Central Excise and Ors. , (1995] Suppl. 3 SCC 429; Collector ofCentral Excise, New Delhi v. Bhiwani Textiles Mills, (1996) 88 ELT 639 and Mis. Ujagar Prints and Ors. (II} v. Union ofIndia and Ors. , (1989] 3 SCC 488, referred to. 1. 2. From the statement of objects and reasons for amending section llA, it is clear that the main purpose of the amendment was to fill in the .. lacuna pointed out by this Court by interpreting Rule I0 of the Central Excise Rules that it does not deal with the classification lists or relate to the re-opening of approved classification lists. It was to validate certain ..

, actions taken under the Section with retrospective effect, by providing that notwithstanding any approval, acceptance or assessment ofduty under the provisions of Central Excise Rules, such show-cause notice could be issued. It specifically states that the amendment was necessary to overcome certain judicial pronouncements. Further, validating provision which is clause 110 of the Finance Act also provides to the same effect. Hence it would be difficult to accept the submission that amended Section HA would not be ) applicable because levy of excise duty on the basis of approved classification list was the correct levy. (110-D-G( 1. 3. This amendment changes the entire basis or foundation of the judgment rendered in Cotspun's case. holding that the levy of excise duty on the basis of approved classification list is not short levy and the differential duty cannot be recovered on the ground that it is a short levy and Rule 10 then has no application.

After the amendment of law, this reasoning of the judgment would no longer survive. It is true that the levy of excise duty on the basis of approved classification list or price-list or the assessment order is correct levy till such time as the correctness of the approved classification list or price list or till the assessment order is set aside. However, with retrospective effect, the legislature has empowered the Central Excise Officer to set at naught the erroneous approval of classification list or acceptance of price list or assessment order. What was provided by Rule 173 Bis now specifically provided by Section ltA. --------~------------- ---·----- --- (109-C-F( --·---n·-···--- -- . 1. 4. As amendment is given retrospective effect, it would be ---applicable to all the pending proceedings.

By this amendment, the basis for arriving at the conclusion that Rule 10 (now Section HA) does not deal with the classification list or relate to re-opening of classification list is altered by specifically providing that in such cases also, show-cause notice could be issued. Hence the conditions on which the judgment was based are fundamentally altered and the decision in Cotspun 's case would not have been rendered if amended Section 11 A was in existence. This is done by re-enacting retrospectively a valid and legal provision. It is settled principle that legislature can change the basis on which a decision is given p by the Court and thus change the law in general. It is also well settled law that the legislature can always render a judicial decision ineffective by enacting a valid law on the topic within its legislative field by. fundamentally altering or changing its character retrospectively. (110-A-C( r Re: Indian Aluminium Co. v. State ofKera/a, [1996) 7 SCC 637, relied on.

1. 5. Merely because a law causes hardship, it cannot be interpreted --~. in a manner so as to defeat its object. It is also to be remembered that the Courts are not concerned with the legislative policy or with the result, , whether injurious or otherwise by giving effect to the language used nor EASLAND COMBINES v. COLLECTOR OF CENTRAL EXCISE )0) it is the function or the Court where the meaning is clear not to give effect to it merely because it would lead to some hardship. It is the duty imposed on the Courts in interpreting a particular provision or law to ascertain the meaning and intendment or the Legislature and in doing so, it should presume that the provision was designed to effectuate a particular object or to meet a particular requirement. [111-D, E[ Re: Firm Amar Nath Basheshar Dass v. Tek Chand, [1972f I SCC 893, relied on. 1. 6.

The power to levy duty under Section 1lA could be exercised within a period ofone year from the relevant date which is defined under Section 11A(3) of the Act. Therefore, this power to correct the errors or mistakes in approval, acceptance or assessment relating to the rate of duty on or valuation or excisable goods cannot he said to be unreasonable. [111-F, Gf ~. 1. 7. It is erroneous to assume that such power would be misused or show-cause notice would be issued without any justifiable basis. In any case, if there is any misuse of power, the Act provides ample remedy for challenging the same in various forums. [113-H; 114-Af 2. 1. It is settled law that for invoking the extended period or limitation duty should not haye been paid, short levied or short paid or I erroneously refunded because or either fraud, collusion, wilful misstatement, suppression of fact or contravention of any provision or rules.

Court has held that these ingredients postulate a positive act and, therefore, mere failure to pay duty and/or take out a licence which is not due to any fraud, collusion or wilful mis-statement or suppression of fact or contravention of any provision is not sufficient to attract the extended period of limitation. [115-F, G] 2. 2. In the instant case it is not that the appellant-company was not entitled to have registration as small scale unit at C. It was a mistaken assumption of appellant's clerk that as the Company was registered as SSI unit at T, it was not required to obtain such certificate at C from which it cannot be concluded that it was willful mis-statement or suppression of fact for getting the benefit ofexemption notification. Classification list was also approved on the said assumption without noticing that separate SSI certificate for factory at C was required to be obtained.

Thus the finding recorded by the tribunal that there was willful suppression on the part of 102 SUPREME COURT REPORT~ (2003] 1 S. C. R. the Company tn eVailing the benefit of notification and, therefore, extended period uf lhnitation could be invoked is set aside. (115-H; 116-A, BJ CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2693 of2000. From the Judgment and Order dated 5. l. 2000 of the Central Excise, Customs and Gold (Control) Appellate Tribunal, New Delhi in F. O. No. 1467 99-B in A. No. B/3646 of 1990(B).. With C. A. Nos. 3437-3438, 3553, 3688, 3805-3807, 4263-4767, 4832- 48341 6272, 7090, 2000, 335, 4249-50, 8113-14/2001and302-303of2002. Soli J. Sorabjee, Attorney General, M. N. Chandrashekharan, M. N. Rao. Prateek Jalan. K. Swami, Ms. Nisha Bagchi, K. C. Kaushik, Ms. Vibha Dutta Makhija, B. Krishna Prasad, P. Parmeswaran, Tara Chandra Shanna, Rupesh Kumar C. Harishankar, Ajay Sharma, Rajeev Sharma, Ms. Neelam Sharma, )-- Ms. Manjula Gupta, M. L. Shujatha, C. N.

Sreekumar, F. Sorabjee, Ravindra Narain, Ms. Sonu Bhatnagar, Ms. Sampada Narang, Ms. Rohini Nath, Umesh Kumar Khaitan, Balbir Singh, Rajesh Kumar, V. Lakshinikumaran. A. R. Madhav Rao, V. Balachandran, Ms. V. Mohana, Ravindra Narain, Ajay Aggrawal, VJ. Francis, P. l. Jose, Jenis V. Francis, S. Nanda Kumar, V. Vijayan, Yogesh Khanna and Rakesh K'. Sharma for the appearing parties. The Judgment of the Court was delivered by SHAH, J. ·The questions which were considered by the Customs, Excise r & Gold (Control) Appellate Tribunal, New Delhi (hereinafter referred to as 'CEGAT) in Final Order No. 1467/99-B dated 5. 1. 2000 arising out of Appeal No. E. /3646/l990(B), were-whether, as the clearances in issue were effected against approved classification lists, the demand was sustainable in view of the law laid down by the Constitution Bench of this Court in Collector of Central Excise, Baroda v.

Cotspun Limited (1999] 113 ELT 353 and whether there was any ground for invoking first proviso to sub-section (1) of Section l lA of the Central Excise Act, 1944 (hereinafter referred to as 'the Act')? fa these appeals, first question which requires decision is - what is the effect of following amendments in Section l lA of the Central Excise Act, 1994 which came into force w. e. f. 17. 11. 1980 by the Finance Act, 2000 (10 of 2000). · The relevant part of unamended Section 1lA was as under:- EASLAND COMBINES v. COLLECTOR OF CENTRAL EXCISE [M. B. SHAH, J. ] I03 "Section I IA-Recovery of duties not levied or not paid or shortlevied or short-paid or erroneously refunded.

-( J) When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, a Central Excise Officer may, within six months from the relevant 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 offraud; collusion or any wilful mis-statement or suppression of facts or contravention of any ofthe provisions ofthis 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 "six months", the words "five years" were substituted.

" Clause 97 ofthe Finance Act provided that in sub-section (I) of Section I IA of the Act following shall be added:- (a) in the opening portion, for the words "erroneously refunded", the words "erroneously refunded, whether or not such non-levy or non-payment, short-levy or short payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under any other provisions of this Act or the rules made thereunder", shall be substituted and shall be deemed to have been substituted on and from the 17th ~ay of November, 1980; J (b) for the words "six months", wherever they occur, the words "one year" shall be substituted; (c) after the proviso and before the Explanation the following provisos shall be inserted namely:- "Provided further that where the amount of duty which has not been levied or paid or has been short-levied or short-paid or erroneously refunded is one crore rupees or less a notice under this sub-section shall be served by the Commissioner ofCentral Excise or with his prior approval by any officer subordinate to him: [2003] I S.

C. R. Provided also that where the amount of duty which has not been levied or paid or has been short-levied or short-paid or erroneously refunded is More than one crore rupees, no notice under this subsection shall be served without the prior approval of the Chief Commissioner of Central Excise". After amendment, relevant part of Section l lA reads thus ''"Section i1A. -Recovery ofduties not levied or not paid or shortlevie -. Explanation-For the removal of doubts, it is hereby declared that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable ifthis section has not come into force. " The aforesaid amendment is given retrospective effect from 17. 11. 1980 i. e. the date on which Section 1l(A) of the Act was introduced. . ~ In the light of the aforesaid statutory provisions, let us now consider the relevant portion of the judgment rendered in Cotspun 's case (supra).

The said case was referred to the Constitution Bench as there were two conflicting three-Judge Bench decisions of this Court on the point in issue. In paragraph 8, the Court approved the finding in Rainbow Industries (P) Ltd v. Collector ofCentral Excise, Vadodara [1994] 6 SCC 563 by holding thus:- 8. In Rainbow Industries (P) Ltd. v. Collector of Central Excise, Vadodara [1994] 6 SCC 563 the appellant was a manufacturer of dyestuff. He had filed a price list as required by Rule J73C of the Central Excise Rules which was approved by the Excise authorities with effect from 1st October, 1975. About a year thereafter, the Assistant Collector issued a notice requiring the appellant to show cause why the net assessable value should not be ·revised and y..... differential duty recovered. The appellant replied to the show cause notice but his contentions were not accepted up to the stage of the Tribunal. In the challenge before this Court to the order ofthe Tribunal EASLANO COMBINES v.

COLLECTOR OF CENTRAL EXCISE [M. B. SHAH, J. ] l07 it was contended that the price list submitted by the appellant having been accepted and acted upon, the Excise authorities were precluded from challenging the same and, therefore, from claiming that the appellant was liable to pay the differential duty. A Bench of two learned Judges of this Coull said: "Once the Department accepted the price list, acted upon it and the goods were cleared with the know ledge of the Department, then, in absence ofany amendment in law or judicial pronouncement, the reclassification should be effective from the date the Department issued the show cause notice. The reason for it is clearance with the knowledge of the Department and no intention to evade payment of duty. " The Court thereafter observed- "In the case of Ballarpur Industries ltd. v. Asstt. Collector of Customs and Central Excise and Ors. , [1995] Suppl.

3 SCC 429 decided by a Bench of three learned Judges, the observations in the judgment in Rainbow Industries were "confined to the facts of that case". The Bench placed reliance upon Rule 10 and held that, on a plain reading of that provisions as also of Section 11A, the show cause notice "which could be issued within the time limit prescribed under the relevant provision could only be in relation to the duty of excise for a period prior to the issuance of show cause notice. There could be no reason for the issuance of a show cause notice for the period subsequent to the notice as in that case the necessary corrective action could always be taken.

But Rule I0 with which we are concerned as well as Section I IA to which a reference is made in the case of Rainbow Industries, the show cause notice which must be issued within the time-frame prescribed in the said provisions must relate to a period prior thereto as the purpose of the show cause notice is recovery of duties or charges short-levied etc. We, therefore, find it difficult to accept the contention that the ratio ofthe decision in Rainbow Industries is that under Section 1IA past dues cannot be demanded We must, therefore, reject that contention. " Thereafter, the Court held that the decision rendered in Ballarpur Industries (supra) does not lay down the law correctly and the decision rendered in Rainbow Industries (supra) on the other hand correctly lays down the law as it was delivered in context of Rule 173 dealing with approved ? price lists and the provisiOns of Rules l 73C and 173B.

The Court also referred to the earlier decision in Collector ofCentral Excise, New Delhi v. Bhiwani Textiles Mills, (1966) 88 ELT 639 wherein it was held that uniil the proposal for modification of the classification was mooted, the earlier classification would operate. Relevant discussion (in paragraphs 12 to 15) is as under:- "12. Rule 173B deals with classification lists. It entitles the proper officer of Excise to make such inquiry thereon as he deems fit and requires him to approve the list only thereafter, and that with such modifications as are considered necessary. The assessee must determine the excise duty that is payable by him on the goods he intends to remove in accordance with the approved classification list. Sub-rule (5) provides for modification of an approved classification list. 13. Rule JO is a provision for recovery of duties that have not been levied or paid in full or part.

So far as is relevant for our purposes, it provides that where any duty has been short-levied, the Excise Officer may, within six months from the relevant date, serve notice on the assesse requiring him to show cause why he should not pay the amount that had been short-levied. Rule IO does not deal with classification lists or relate to the re-opening of approved classification lists. That is exclusively provided for by Rule l 73B. 14. The levy of excise duty on the basis of an approved classification list is the correct levy, at least until such time as to the correctness of the approval is questioned by the issuance to the assessee ofa show cause notice. It is only when the correctness of the approval is challenge that an approved classification list ceases to be such. 15. The levy ofexcise duty ori the basis of an approved classification list is not a short levy. Differential duty cannot be recovered on the ground that it is a short levy. Rule IO has then no application.

" Learned counsel appearing on behalf of the assessee submitted that the aforequoted amendment in the Act does not change the basis or the foundation of the judgment rendered by this Court in Cotspun 's case (supra). It is his contention that once the excise duty is collected on the basis of the approved classification, price list or on the basis of the assessment order it cannot be held that there was short levy of excise duty. In such cases levying of excise EASLANDCOMBINES v. COLLECTOR OF CENTRAL EXCISE [M. B. SHAH, J. ] ) 09 duty on the basis of approved classification or final assessment order is the correct levy and therefore the amended Section 11A would not be applicable. •'. In our view, there is no substance in this submission.

As stated earlier, the relevant amended portion of Section 11A inter a/ia makes it abundantly clear that when any duty of excise has been short levied or short paid, whether or not such short levy or short payment was on the basis of any approval, acceptance or assessment relating to the rate ofduty on or valuation of excisable goods under any other provisions of the Act or the rules, the Central Excise Officer, can without one year from the relevant date, serve notice on the person chargeable with the duty, which has been short levied or short paid, requiring him to show cause why he should not pay the amount specified in the notice. This amendment changes the entire basis or foundation of the judgment rendered in Cotspun 's case (supra).

The entire discussion in the said case is based upon Rule 1738 which dealt with classification list and that assessee must determine the excise duty which is payable by him on the goods which he intends to remove in accordance with approved classification list. The Court based its reasoning by holding "Rule 10 does not deal with classification list or relate to reopening of approved classification lists. That is exclusively provided by Rule 1738. " The Court further held that the levy of excise duty on the basis of approved classification list is not short levy and the differential duty cannot be recovered on the ground that it is a short levy and Rule IO then has no application. After the amendment of law, this reasoning of the judgment would no longer survive.

It is true that the levy of excise duty on the basis of approved classification list or price-list or the assessment order is correct levy till such time as the correctness ofthe approved classification list or price list or till the assessment order is set aside. However, with retrospective effect, the legislature has empowered the Central Excise Officer to set at naught the erroneous approval of classification list or acceptance of price list or assessment order. What was provided by Rule ' 1738 is now specifically provided by Section l lA. Rule 1738 (5) also provided thus:- "When the dispute about the rate of duty has been finalised or for any other reasons affecting rate or rates ofduty, a modification of the rate or rates of duty is necessitated, the proper officer shall make such modification and inform the assessee accordingly. " Now, after amendment, this can be done by the Central Excise Officer within a period of one year from the relevant date.

As amendment is given retrospective effect, it would be applicable to all the pending proceedings. By this amendment, the basis for arriving at the conclusion that Rule 10 (now Section I IA) does not deal with the classification list or relate to re-opening of classification list is altered by specifically providing that in such cases also, show-cause notice could be issued. Hence, the conditions on which the judgment was based are fundamentally altered and the decision in Cotspun 's case would not have been rendered ifamended Section 11A was in existence. This is done by re-enacting retrospectively a valid and legal provision. It rs settled principle that legislature can change the basis on which a decision is given by the Court and thus change the law in general.

It is also well settled law that the legislature can always a render a judicial decision ineffective by enacting a valid law on the topic within its legislative field by fundamentally altering or changing its character retrospectively. Re: Indian Aluminium Co. v. State of Kera/a, (1996] 7 SCC 637. Further, learned Attorney General rightly referred to the statement of objects and reasons in support of the contention that the law is altered so as to change the entire basis of the judgment rendered in Cotspun's case (supra). From the statement . of objects and reasons, it is ab. undantly clear that the main purpose of the amendment was to fill-in the lacuna pointed out by this Court by interpreting Rule 10 as it existed.

As quoted above, the objects and reasons clearly provide that it was to validate certain actions taken under Section I IA of the Central Excise Act with retrospective effect from 17th November, 1980, by providing that notwithstanding any approval, acceptance or assessment of duty under the provisions of Central Excise Rules, such show-cause notice could be issued. It specifically states that the amendment was necessary to overcome certain judicial pronouncements. Further, validating provision which is clause 110 of the Finance Act also provides to the same effect. Hence, it would be difficult to accept the contention raised by the learned couns~l for the assessee that amended Section 11A would not be applicable because levy of excise duty on the basis of approved classificatiorl list was the correct levy.

Even in Cotspun 's case, the Court has specifically stated that such levy would be correct levy, at least until such times as the correctness of the approval is questioned by the issuance to the assessee of a show cause notice. The entire provision is amended by providing thatwhether or not non-levy or non-payment, short-levy or short-payment or erroneous refund ofexcise duty even on the basis ofany approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods made under the Act or the Rules, a Central Excise Officer can within one year from the relevant date serve show-cause notice on the person chargeable EASLAND COMBINES,.. COLLECTOIROF CENTRAL EXCISE [M. B. SHAH, J. ] ] ] ] with the duty which has not been levied or paid or which has been shortlevied or short-paid or to whom the refund has erroneously been made.

--; Learned counsel for the assessee pointed out that the assessee would be placed in a precarious situation because in a genunie case once the assessee's classification list is approved he W•ould recover the duty from purchasers on that basis. Thereafter, within one year of the relevant date a show cause notice is issued stating that such ap1proval of classification list was erroneous, he would not be in a position to recover the difference of excise duty from the purchaser of the excisable gocids. It is contended that presuming th. at the approved price list was erroneou1s or order was erroneous because of the mistake of the concerned officer of the department, assessee cannot be put to loss otherwise it would cause hardship to the assessee. It is also cont. ,nded that this power can be misused by invoking the proviso to sub-section (I) of Section 11, merely stating that d1uty of excise has been short levied because of willful statement or suppression of facts.

In our view, it would be d,ifficult to accept the aforesaid contention. It is well settled Jaw that merely because a law causes hardship, it cannot be interpreted in a manner so as to defeat its object. It is a)so to be remembered that the Courts are not concerned with the legislative policy or with the result, whether injurious or oth .. Further, it is contended that such power is likely to be misused and the assessee would suffer. In our view, it is erroneous to assume that such power would be misused or show-cause notice would be issued without any justifiable basis. In any case, if there is any misuse of power, the Act provides ample ,.... remedy for challenging the same in various forums. . Hence, it is held that in view of the amendment of Section 11-A (1), the decision rendered by this Court in Cotspun 's case (supra) would not be a good law.

Show cause notice for correcting errors or mistakes in approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under the provisions ofthe Act or the Rules made thereunder could be issued within the prescribed period. Next question is-whether there was any ground for invoking first proviso to sub-section ( 1) of Section 11A of the Act? It is submitted that Ml s. Easland Co'llbines (hereinafter referred to as 'the Company') is a small scale industrial undertaking established in the year 1973 with the factory at Trivandrum and engaged in the manufacture of various types of Water Taps out of Iron, Aluminium and Brass classised under sub-heading 8481. 80 ofthe Schedule of the Central Excise Tariff Act. The said factory at Trivandrum was registered with the Department of industries at Kerala State as a Small Scale Industry vide Registration No. T/Sl/235/75 dated 23. 5. 1973.

The Company set up another factory at Coimbatore holding Central Excise licence B. 4 No. 1/T. I. 68/82. as a branch of the main undertaking at Trivandrum. For the year 1986-87, the Company filed a classification list-S. No. A/ 51/86-87 dated 26. 5. 86 in respect of excisable goods produced by them and claimed exemption applicable to small scale manufacturers in terms of Notification No. 175/86 dated l. 3. 1986 (as amended). The said classification list was verified by the Central Excise authorities and duly approved by the Asstt. Collector of Central Excise, Coimbatore-I Division. During the year 1986-87 and 1987-88, the Company cleared their goods availing the exemption in terms of Notification No. 175/86 dated l. 3. 1986 (as amended) and submitted their monthly RT 12 returns which were duly assessed by the Range Superintendent, Coimbatore-I Division and returned to • the Company. In October, 1986 and October, 1987, the factory at .

Coimbatore was visited by the Central Excise Revenue Audit authorities. On 5. 2. 1988, the factory was visited by Central Excise Internal Audit Authorities, Coimbatore. Thereafter, on 7. 12. 1989, a show-cause Notice C. No. V/Ch. 8481. 80/ EASLAND COMBINES v. COLLECTOR OF CENTRAL EXCISE [M. B. SHAH, J. ] 115 15/92/89, CxAdj. (CERA) dated 7. 12. 1989 was issued to the Company by -the Collector, Central Excise, as to why differential duty amounting to Rs. 7,59,501. 28 be not demanded from the Company under Rule 9(2) of the Central Excise Rules; 1944 read with Section 11 A of the Central Excise & Salt Act, 1944 and penalty be not imposed on them under Rules 9(2) and l 73Q of the Central Excise Rules, 1944. On 10. 8. 1990, the Collector, Central Excise, Coimbatore, by Order-in- Original C. No. V/Ch. 8481. 80/15/92/89 dated I0. 8. 1990 confll111ed the demand of duty of Rs. 7,59,501.

28 raised in the show-cause notice, under Rule 9(2) of the Central Excise Rules, 1944 read with Section I IA of the Central Excise and Salt Act, 1944 and imposed a penalty of Rs. I0,000 upon the Company under Rule 9(2) and I73Q of the said Rules. In appeal, the Tribunal considered whether the extended period of limitation is invokable for demanding Central Excise Duty under Section I lA of the Act. The Tribunal considered that as per the Notification No. 175/ 86 exemption is available only to a factory which is an undertaking registered with the Director of Industries and that the factory where the goods are manufactured and removed should be an undertaking registered with the Director of Industries before the exemption provided by the notification could be extended. Therefore, merely because factory ofthe Company at Trivandrum was registered as SSI unit, the benefit of notification was not available in respect of a branch factory at Coimbatore.

The factory at Coimbatore was an independent unit which is required to be registered as SSI unit with the Director of Industries. The Tribunal, therefore, held that as there was misstatement by the appellant, the duty is demandable from the appellants- Company for the extended period and hence dismissed the appeal. It is settled laws that for invoking the extended period of limitation duty should not have been paid, short levied or short paid or erroneously refunded because of either fraud, collusion, wilful mis-statement, suppression of fact or contravention of any provision or rules. This Court has held that these ingredients postulate a positive act and, therefore, mere failure to pay duty and/or take out a licence which is not due to any fraud, collusion or wilful misstatement or suppression of fact or contravention of any provision is not sufficient to attract the extended period of limitation.

The present case is not a case where the Company was not entitled to have registration as SSI unit at Coimbatore. It was a mistake ofthe concerned clerk on the assumption that as the Company was registered as SS! unit at Trivandrum, the Company was not required to obtain such certificate at Coimbatore. From such mistake it would be difficult to arrive at a conclusion that it was wilful misstatemerit of suppression of fact for getting the benefit 'lf exemption notification. Classification list was also approved on the said assumption without noticing that separate SSI certificate for factory at Coimbatore was required to be obtained. In this view of the matter, in our view, the finding recorded by the Tribunal that there was willful suppression on the part of the Company in availing the benefit ofNotification and therefore extended period of limitation could be invoked, requires to be set aside and is hereby set aside. The appeal is allowed to the aforesaid extent. C. A. Nos.

3688, 4263, 4767 and 4832-34 of2000. ~- In these appeals, the Tribunal arrived at the conclusion that in two of the cases, demands were within six months and in one case exte11ded period was invoked and set aside the order by holding that there was no suppression and only normal period of six months would be available. However, relying upon the decision in Cotspun 's case. Appeals were allowed. Hence, these appeals. --l. Considering the reasons recorded in the aforesaid judgment, the impugned order passed by the Tribunal holding that the demand in these cases is not enforceable in view of Cotspun 's case, requires to be set aside and is hereby set aside. r In the result, the appeals are allowed. C. A. Nos. 3437-3438 of2000 ,. >- We have heard the learned counsel for the parties. It is agreed by the learned counsel for the parties that the question-whether extended period of limitation could be invoked in the present case by the Revenue or not-requires ..

to be re-determined by the Tribunal. In the result, the appeals are allowed and the matters are remitted to the Tribunal for deciding the matters in accordance with law. C. A. Nos. 3553 and 6272 of2000. CA Nos. 335, 8113-14 and 4249-4250 of 2001. EASLAND COMBINES v. COLLECTOR OF CENTRAL EXCISE (M. B. SHAH, J. J ( J7 The appeals were allowed by the Tribunal relying on the decision rendered by this Coun in Cotspun 's case. However, on facts, it is agreed that the matter requires to be remitted to the Tribunal for deciding the question of classification and other issues. In the result, the appeals are panly allowed. The impugned order passed by the Tribunal is set aside. The Tribunal to decide the contention raised by the respondents with regard to classification of the goods in question and . x other issues, if any. CA. No.

7090 of2000 Jn view of amended Section 11A, it is agreed by the learned counsel for the panies that for determining other questions, matter is required to be remitted. Hence, the appeal is allowed. The impugned order is set aside and the matter is remitted to the Tribunal for deciding it afresh in accordance with law. C. A. Nos. 3805-3807 of 2000 These three appeals arise out of the common order passed by the Tribunal. Jn two cases, demands were within six months from the date of the show-cause notice. In one case, extended period was invoked. The Tribunal arrived at the conclusion that considering the facts of the case, the extended period could not be invoked and, therefore, charge of misclassification, suppression etc. requires to be set aside. The Tribunal held that normal period of limitation of six months would be available. The Tribunal however held that in view ofthe decision in Cotspun's case, the demand was not enforceable and the appeals were allowed.

In view ofthe amended statutory provisions and for the reasons recorded above, the demands which are within period of limitation could be enforced. In the result, the appeals are panly allowed accordingly. CA Nos. 302-303 of 2002 In these appeals, final order No. 83/2000-A dated 18. 2. 2000 and Misc. Order No. 147/2000-A dated 22. I2. 2000 are challenged. By order dated I8. 2. 2000, the Tribunal held that the clearances of the goods were effected pursuant to the approved classification list and price list 118 SUl>REME COURT REPORTS (2003) I S. C. R. and that being the position, the entire exercise undertaken by the department in pursuance of the show-cause notice dated 31. 3. 1986 was illegal. The :r-- Tribunal, therefore, set aside the order passed by the adjudicating authority and the department was directed to refund the amount expeditiously. That order was challenged by filing applications to rectify the mistakes on the ground ofsubsequent amendment ofthe statute.

The Tribunal dismissed those applications relying upon the Cotspun 's case and held that the subsequent amendment of statute cannot be a reason for entertaining a petition for rectification of a mistake. In view of the interpretation rendered by us with regard to statutory provisions, these appeals are required to be allowed and the matters are required to be remitted to the Tribunal for deciding it on merits with regard to the other contetttion which are sought to be raised on facts. In the result; appeals are allowed accordingly and the orders ofCEGAT are set aside. The matters are remitted to the Tribunal for deciding the same on merits in accordance with law. There shall be no order as to costs in all these appeals. N. J. Appeals disposed of.