TaxTMI 
TaxTMI 
2023 (7) TMI 633
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....hort-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 non-payment 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 keywords in the relevant expression in Section 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. 4. The show-cause notice dated April 7, 2008 pertained to a period beginning March, 2003 when the assessee began its production of soya nuggets in the State. However, prior to the issuance of such notice, the duty that was payable from 2006 onwards was tendered and there is no dispute in such regard. The matter came to be considered as to whether the assessee was liable for the period prior to ....
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....ssee to deceive or, in other words, to evade the payment of duty. The assessee asserted that since no case of fraud or collusion or wilful misstatement or wilful suppression had been made out or indicated in the original show-cause notice issued in the year 2008, the Department was not entitled to the extended period and had to confine its demand and claim to the period within limitation which, at the relevant time, was one year. The further issue that was canvassed by the appellant in course of the previous round was that there was no question of the assessee attempting to evade duty since the entire matter was revenue neutral to the assessee. Certain notifications were relied upon to contend that in view of the location of the manufacturing unit in Ri-Bhoi district in the State, the assessee would have been refunded the quantum of excise duty that it had paid. 8. An incidental issue also arose as to when the assessee may have exceeded Rs. 1 crore in turnover since prior to such period, no excise duty could be levied on the goods manufactured by the assessee. Another issue that was noticed in the order passed by this Court was as to whether the goods were manufactured under a bra....
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....l." 12. There is no doubt that in response to the above query, the Range Superintendent categorically indicated in his letter of September 13, 2006 that the manufactured product of the assessee did not attract any excise duty and, as such, it was not obligatory on the part of the assessee to obtain any central excise registration. It does not appear that such certificate or the opinion of the Range Superintendent expressed therein was obtained by fraud or collusion or wilful misstatement or wilful suppression. The facts were clearly indicated in the assessee's letter of September 4, 2006 and nothing in such letter can be said to have deceived or attempted to deceive the relevant Range Superintendent. 13. There is no dispute that ignorance of law is not an excuse. When a person undertakes a commercial venture and commences a manufacturing process or the like, such person is obliged to know the formalities necessary for the purpose and the duty, tax or the like payable thereupon. However, when a person in the position of the assessee herein was confused - and the entries in the central excise scheme are virtually a trap - and such assessee approached the Department through its Rang....
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....elevant notifications have been set out and discussed in detail by the Appellate Tribunal in the order impugned. However, no reason has been indicated as to why the assessee in this case could not have obtained the benefit under the relevant notifications. 18. Though at first blush it would appear that the order impugned gives sufficient reason as to why the notifications for exemption or refund would not apply to the assessee, but a closer inspection would reveal that no reasons have been proffered in such regard. 19. The relevant discussion is confined to a paragraph towards the bottom of the page 310 of the appeal papers (page 46 of the impugned order) before quoting copiously from a judgment reported at 2000 (119) ELT 718. The quotation from the judgment ends at page 312 of the appeal papers (page 48 of the order impugned). It is evident that in the reported case it was not the same notification but a comparable notification that was discussed in the context of revenue neutrality. For the dictum in the reported judgment to be appreciated and applied in the context of the case in hand, there ought to have been a sentence or two expended. However, it is evident from the order i....