9911796707
TMI Blog2019 (4) TMI 1198X X X X Extracts X X X X X X X X Extracts X X X X ..... theless, while that may be a necessary limb, it does not suffice in the absence of the second limb, viz., intent to evade duty. It is a well-settled in law that mere non-payment of duty cannot be equated with evasion and, even less so, with intent to evade. That has to be established by circumstances. The practice by the appellant between 2003 and 2007 to discard applicability of section 4A of Central Excise Act, 1944 may not be easily amenable to labelling as intended to evade duty. In matters concerning the invoking of the extended period, which is also attended by a penalty of like amount under section 11AC of Central Excise Act, 1944, mere presumption will not suffice. The ingredients must be clearly established and benefit of doubt, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not been tagged for disposal along with the appeal of the respondents herein and others similarly situated. It is his further contention that the said decision did examine the scope for invoking an extended period in relation to other assessees before coming to the conclusion that the bar of limitation did not operate. Learned Authorized Representative further submits that the adjudicating authority had limited the scrutiny of ingredients justifying the extended period only to 'fraud', 'collusion', 'wilful misstatement' and 'suppression of facts' without going into the fifth element, viz., 'contravention of any of the provisions of this Act or the rules made thereunder with intent to evade payment of duty' which was apparent from the circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion provided for in section 11 A of Central Excise Act, 1944. Nonetheless, while that may be a necessary limb, it does not suffice in the absence of the second limb, viz., intent to evade duty. It is a well-settled in law that mere non-payment of duty cannot be equated with evasion and, even less so, with intent to evade. That has to be established by circumstances. 5. The decision of the Tribunal in the respondent's own appeal against the order impugned herein did go into the aspect of the bar of limitation but in the context of other appellants who sought relief on the lines granted to the respondent herein in the impugned order. As the bar of limitation is to be determined on facts and those facts were not examined in the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various independent links that were subject to other taxes on sale and purchase renders such visiting of arbitrary conferment of responsibility with harsh, and, at times, disproportionate, consequences. More so, as the statutory provisions do provide for alternative intent of non-retail supply without providing for acceptable manifestation of intent. In the circumstances, the presumption that there has been any intent to evade duty becomes tenuous. 7. The issue of the method of assessment to be adopted is yet to attain finality. That the Hon'ble Supreme Court has considered it necessary, in State of Maharashtra v. Subhash Arjundas Kataria [2012 (275) ELT 289 (SC)] to have the matter considered by a Larger Bench would imply that the contro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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