Per A.C.C. Unni :

This is a matter which has been referred to this Larger Bench constituted by the President by order dt. 21.6.99 pursuant to Miscellaneous Order No. 54/98-C passed by one of the Benches of this Tribunal. The question referred relates to the interpretation of Section 11A (1) of the Central Excise Act, 1944 and its proviso in particular. The Miscellaneous Order No. 54/98-C, proposing reference of the question to the Larger Bench had observed as under:

"We find that there are conflicting views on the point as to whether the date of knowledge by the Department is relevant according to the provisions of Section 11A and whether the notice issued beyond the period of six months from the date of knowledge, should be held to be barred by the limitation".

2. Before proceeding further, it will be useful to refer to the said section which reads as follows:-

"SECTION 11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. - (1) 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 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 "six months", the words "five years" were substituted.

Explanation:- Where the service of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of six months or five years, as the case may be.

(2) The Central Excise Officer shall, after considering the representation, if any, made by the person on whom notice is served under sub-section (1), determine the amount of duty of excise due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined.

(3) For the purposes of this section, -