9911796707
TMI Blog2023 (7) TMI 633X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. In view of the fact that the assessee had approached the Department or an officer in the Department for an opinion and acted in terms of the opinion rendered, it would rule out any act of deceit on the part of the assessee or conduct which could be construed to having an intent to evade payment of duty - Once so much is seen, the proviso to Section 11A(1), as it then stood, would not be available to the Department and the rest of the arguments and findings on such arguments become redundant. However, there is a further leg on which the assessee s conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 2006 and the order-in-original dated March 16, 2009 found the assessee and its officers liable. 5. Upon the matter being challenged in several fora and reaching this Court, an order was passed on February 8, 2022 indicating that there was several issues which ought to be considered or revisited by the Customs, Excise and Service Tax Appellate Tribunal. The three aspects that were highlighted in this Court s order have been noticed and set out in the order impugned dated August 25, 2022: (i) Whether in facts and circumstances of the case the benefit of exemption Notification No 8/2002-CE and 8/2003-CE (as amended from time to time), will be admissible to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 brand. 9. Upon noticing the several issues that had been raised in course of the previous appeal, but due consideration whereof may not have been adequately reflected in the order impugned at that stage, the matter was remanded to the Appellate Tribunal for its fresh consideration upon indicating the areas that required to be looked into in course of the remand. The order of this Court of February 8, 2022 has been copiously reproduced in the order impugned herein and the three major questions which were framed find place in such order. 10. Apropos the extended period of limitation under the proviso to Section 11A(1) of the Act, as it stood at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Range Superintendent to obtain a clarification, coupled with an undertaking that even if a different view was subsequently taken it would pay the entire duty or the shortfall, the approach of the assessee could not be said to be one which indicated an intention to evade payment of duty. 14. Without attributing any motives to the relevant Range Superintendent, it is evident that the assessee was lulled into believing that the assessee was not liable to pay excise duty on its manufactured product. Further, it is not as if the assessee paid the excise duty due pursuant to the notification of March 1, 2006 in 2006 itself. It was o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal 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 impugned that immediately upon the end of the quotation, the Appellate Tribunal begins with the word Thus The word Thus is an indication of a finding and would convey the sense that the reasoning precedes it. In this case, the Thus follows immediately after the quotation without relating the dictum in the reported case to the facts of the present case. At any rate, all that the Tribunal has said is that there were several conditions which had to be complied with for the assessee to avail of the benefit under the relevant notifications. The Appellate Tribunal did not directly say that the assessee was ine ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
