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TMI Blog2012 (5) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... efence of the assessee was that there was no intent to evade the payment of duty, matter remanded to Tribunal - Central Excise Appeal No. 139 of 2009, - - - Dated:- 7-6-2011 - Dr. D.Y. Chandrachud and Anoop V. Mohta, JJ. S/Shri Vipinkumar Jain with Krishna Kumar and P.K. Shetty, Counsel, for the Appellant. S/Shri R. Ashokan with J.B. Mishra, for the Respondent. [Order]. P.C. : This Appeal arises out of an order of the Tribunal dated 29th May 2009 [2009 (247) E.L.T. 498 (Tribunal)]. The Tribunal by the order impugned in these proceedings has confirmed the order of the Commissioner (Appeals) dated 14th January 2008. 2. A notice to show cause was issued to the assessee on 18th October 2004. The allegation against the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the demand was held to be correct and legal and was upheld. In Appeal, the Tribunal held that while the order of the Commissioner (Appeals) was not happily worded, it substantially met the requirement of the remand order of the Tribunal. 3. Counsel appearing for the Appellant has submitted that the Tribunal while holding that the requirements of Section 11AC of the Central Excise Act, 1944 had been met, merely observed that the allegation of the Department that the assessee had contravened various provision of the Rules with an intent to evade the payment of duty was not successfully contested by the assessee. This, it has been urged, is erroneous since a specific ground was raised in reply to the notice to show cause. 4. The fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntent to evade payment of duty was not successfully contested by them. In the circumstances, the requirements of Section 11AC were met. 6. Ex facie and with respect, the Tribunal has not addressed itself to the question as to whether the fundamental requirement of an intent to evade the payment of duty was duly established so as to attract the extended period of limitation. We have extracted from the reply filed by the asessee to the notice to show cause since it is evident that the defence of the assessee was that there was no intent to evade the payment of duty. Whether that was so or otherwise was a matter which ought to have been determined, but has not been determined by the Tribunal. In these circumstances, we are of the view that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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