C.T.A. Piliai, Member (T)

1. The facts of the case have been set out in the order of the Collector of Central Excise, Coimbatore, referred to above. The short points for consideration in this appeal are whether the demand for duty on automotive brake drums which had been cleared from March 1979 to April 1983 without, payment of duty, in 'terms of Rule 9(2) read with Section 11A of the Central Excises Salt Act, 1982 is maintainable because it encompasses a period longer than six months from the date of demand, and whether the order being that of the Collector is in conformity with the provisions of Section 11A at all.

2. It is accepted that brake drums are liable to duty under Item 68 of the Central Excise Tariff with effect from 1-3-79 because of the changes brought about by the Budget of 1979. It is also not disputed that goods have been cleared without payment of the duty leviable under that Item.

3. The learned advocate for the appellant urged that there can be no demand without a process of assessment and in this connection, he relied on the decision of the Supreme Court in the case of 'Assistant Collector of Central Excise., Calcutta v. National Tobacco Co. of India Limited.' (1978 ELT 416 at paragraphs 21 and 22). Reference was also made to the case of 'N.B. Sanjana, Asstt. Collector of Central Excise, Bombay and others v. The Elphinstone Spinning and Weaving Mills Co. Limited' (1978 ELT J 399, at page 406) where the words "duty paid" occurring in Rule 10 have been interpreted as referring to duty which ought to have been paid and even when no duty has been assessed, the entire duty when subsequently assessed will be a short levy.

4. Continuing, the learned advocate urged that the period of five years can be invoked only if there is fraud, collusion or any wilful mis-statement 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. Suppression can only be wilful non-disclosure which should be the meaning attached to the term if one were to follow the rule of Noiscitur a sociis. The words 'suppression of facts' occur along with the words 'fraud, collusion, wilful misstatement and wilful contravention'. "Fraud" as defined in Section 17 of the Indian Contract Act, 1872, brings in intent to deceive. There is always an element of intention in collusion. Wilful mis-statement again involves intent; And for the last category, there is a specific reference to intent to evade payment of duty. It was therefore, urged that 'suppression' should also be given the same meaning and be equated to wilful non-disclosure. A general reference was made to the exposition of this doctrine in Maxwell on 'The Interpretation of Statutes (12th Edition) at page 292. A reading of the order would show that the Collector refers only to contravention of the provisions of the Act. There is no reference to any intent to evade payment of duty on the part of the appellant; so even if Section 11A is to be applied, only the last part regarding contravention of the provisions of the Act or the Rules with intent to evade payment of duty should alone apply to the facts of this case; hence, the demand for a period of five years will be hit by limitation.

5. The notice does not specifically refer to invoking the extended period under Section 11A. It is thus bad in law. It has been held by this Tribunal in the case of 'Mac Laboratories (P) Limited, Bombay v. Collector of Central Excise, Bombay' - MANU/CE/0194/1984 : 1985(19) ELT 307 - that where there is no such reference to the longer period referred to in Section 11A, cannot be the longer period covered.

6. Continuing the learned advocate disputed the legality of the order in that it has been passed by the Collector. According to Section 11A, the power to demand duty, which has been not levied or paid, lies with the Assistant Collector of Central Excise. It is not open to the Collector to make a demand in terms of that Sectio