ORDER
J.H. Joglekar, Member (T)
1. In this application it has been contended that there is a mistake apparent on the face of Final Order Nos. E/397-398/97-B in as much as the Tribunal has dismissed the department’s appeal with the observation that the Show Cause Notice does not contain specific allegation of wilful suppression; whereas scrutiny of the said Show Cause notice shows that the following phrase was incorporated therein :-
“Whereas it appears that M/s. Kandivali Metal Works, C. P. Road, Kandivali (East), Bombay-400101, have contravened the provisions of Rule 56A of C Ex Rules, 1944, in as much as they mis-declared (emphasis supplied) the content of Aluminium in the Aluminium Dross….”
2. We have heard Shri S. Nunthuk, ld. JDR. The respondents were not present.
3. In the impugned order, the Collector had made the following observation :-
“In order to invoke the longer period of five years under Rule 56A there must be an allegation that credit has been allowed on account of wilful mis-statement, collusion or suppression of facts etc. No such allegation has been made in the show cause notice. Under the circumstances the normal time limit of six months would apply in terms of Rule 56A(5)(i).”
4. Our Final Order shows that we had examined the Show Cause notice and had found that the phrase “mis-declared” used in the first paragraph did not measure upto the wording used in the particular provision in the rule which read as follows :-
“Provided that where a credit has been allowed under Sub-rule (2), on account of wilful mis-statement, collusion or suppression of facts….”
5. We find that there is a great distinction between the two phrases – one used in the show cause notice and the one that is required to be used in terms of the provision cited above.
6. The Supreme Court in the case of Cosmic Dye Chemical reported at 1995 (75) E.L.T. 721 had dwelt upon the term “mis-statement” and had held that for the longer period to apply, the term must be qualified by the immediately preceding word “wilful”. Since the preceding words are omitted in the Show Cause notice, the Collector was quite correct in holding that the extended period was not invokable. For the same reason, this application must fail and is rejected.