PAWAN KUMAR SHARMA Vs. COMMISSIONER, CENTRAL GOODS AND SERVICES TAX AND CENTRAL EXCISE

JUDGEMENT

(1.) This is the second round of proceedings, so to say, and the assessee is in appeal upon duty, interest and penalty being levied on the assessee for non-payment or short payment of duty for a period more than one year prior to the date of issuance of the show-cause notice.

(2.) At the relevant point of time, Sec. 11A of the Central Excise Act, 1944 provided for a period of limitation of one year. However, the period of limitation would not apply if the short-levy or non-payment or the like was as a result of any fraud or collusion or any wilful misstatement or suppression of facts or contravention of any of the provisions of the Act or the rules made thereunder with intent to evade payment of duty. It is evident that for the Department to issue a show- cause notice, at the relevant point of time, for short payment or nonpayment of duty and the like for a period beyond a year from the date of issuance of the notice, the element of mens rea on the part of assessee had to be established.

(3.) The key words in the relevant expression in Sec. 11A are "with intent to evade payment of duty". Fraud, collusion, misstatement and suppression are different species of the same genus where the overarching conduct is the intent to evade payment of duty.