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TMI Blog2018 (9) TMI 801X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, virtually, shifting the burden of proving the evasion of duty that had taken place on the assessee. As perused the entire order of assessment. There is no independent material brought on record by the Assessing Officer other than those which were already collected by the Excise department and which, as noted earlier, are yet to be verified. The excise show-cause notices in case of the present assessee are yet to be adjudicated. What would be the material on record during such proceedings is not possible for us to foresee. Secondly, the Tribunal has mainly proceeded on the basis of absence of section 4A of the Central Excise Act at the relevant time which, in the opinion of the Tribunal, alone could have permitted the department to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... using the material collected by the Excise Department including the statements of relevant witnesses recorded during the search? 2. Respondent-assessee is in the business of manufacturing ceramic items. Assessee was subjected to investigation at the hands of Central Excise [Investigation Wing] which led to show-cause notice being issued for adjudication and levy of unpaid excise duty with interest and penalty. On the basis of such exercise and the materials collected by the Intelligence Wing of the Excise department, the Revenue also reopened the assessments and instituted further inquiries, upon completion of which, the Assessing Officer made additions which eventually came to be deleted by the Tribunal by the impugned judgement. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lacs) had escaped assessment. He accordingly, framed the assessment after rejecting the petitioner's objections. Such assessment order was challenged by the petitioner before the High Court on the ground that the Assistant Commissioner of Commercial Tax had proceeded merely on the show-cause notice issued by the Excise Department without any further verification. The Court noticed that the entire order of reassessment proceeded on the show-cause notice issued by the Excise department without any further material being brought on record. The Court held that merely because the Excise department issued such a notice, it cannot be a ground to presume that there was evasion of excise duty further implying evasion of value added tax. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt or suppression of facts or contravention of the provisions of the Act with intent to evade payment of duty. 9. Under the circumstances, the Assessing Officer cannot be expected to defer completion of assessment awaiting final order of adjudication in excise proceedings at the risk of his assessment getting time barred. Even otherwise, in a given case, the material that may be brought on record in excise proceedings may be different from that which may form part of the assessment proceedings though the both may, to some extent, be common. 10. Having thus cleared the peripheral issues, we may examine the central question viz. did the Assessing Officer have sufficient material at his command to believe evasion of tax? We have no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer merely cosmetically gave an opportunity to the assessee to meet with such allegations, virtually, shifting the burden of proving the evasion of duty that had taken place on the assessee. We have perused the entire order of assessment. There is no independent material brought on record by the Assessing Officer other than those which were already collected by the Excise department and which, as noted earlier, are yet to be verified. 12. Counsel for the assessees drew our attention to a judgement of Customs, Excise and Service Tax Appellate Tribunal in which, the order of adjudication passed in case of one of the ceramic units (not an assessee before us) by the Adjudicating authority came to be set aside. However, for the followin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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