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TMI Blog2024 (5) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... much later. Regardless of when the payment is received or not received, duty becomes payable on removal and has to be paid by the sixth day of the following month - Form 26AS is system generated by the Income tax portal as a compilation of all the amounts paid by various persons and the TDS deducted from the assessee during the financial year. There is no contrary overriding provision in the Central Excise Act. Therefore, section 102 of the Evidence Act applies and in case of Show Cause Notices issued under Central Excise Act, the burden of proof lies on the Revenue because if no evidence is provided by either side, the SCN fails. Therefore, it was not for the appellant to reconcile the documents and produce evidence but it was for the Revenue to establish that some excise duty escaped assessment and has to be paid. This demand of central excise duty on the capital goods sold by the appellant (which were not manufactured by it at all) is beyond the scope of the charging section 3 of the Central Excise Act and also beyond the legislative powers of the Union as per entry 83 of List 1 of the Seventh Schedule of the Constitution - the SCN, the OIO and the impugned order were issued und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 6,99,454/- alleged to have been short paid by the appellant along with a proposal to impose an equal amount as penalty under section 11AC. 5. These proposals were confirmed by the Assistant Commissioner in the OIO and upheld by the Commissioner (Appeals) in the impugned order. Submissions of the appellant 6. Learned counsel for the appellant made the following submissions: (i) The appellant manufactures all the answer sheets only for BSE and it is not allowed to sell and has not sold even a single answer sheet outside in the market. Any unutilized answer sheets are destroyed; (ii) The appellant s sales are on credit and its accounts are maintained on accrual basis. Therefore, if goods are sold in one year, they are accounted for in that year and duty is paid in that year but the sale proceeds may be received much later. Thus, the amount received in a year from BSE may be more than the goods sold to it by the appellant ( if some payments of previous year were received during that year) or less than the value of the goods sold to it by the appellant (if some payments are not made during that year but are made in the following year); (iii) As far as the Central Excise duty is con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Value Added Tax (CENVAT) on all excisable goods (excluding goods produced or manufactured in special economic zones) which are produced or manufactured in India as, and at the rates, set forth . 9. The seventh schedule of the Constitution of India divided the subjects between the Union (List I) and the States (List II) and gave concurrent jurisdiction on certain subjects (List III Concurrent List). Central Excise duties are levied as per entry 84 of List I which, during the relevant period, read as follows: 84. Duties of excise on tobacco and other goods manufactured or produced in India except- (a) alcoholic liquors for human consumption; (b) opium, Indian hemp and other narcotic drugs and narcotics, but including medicinal and toilet preparations containing alcohol or any substance included in sub-paragraph(b) of this entry. 10. Thus, the constitutional mandate of the Union to levy excise duty and also the charging section under the Central Excise Act clearly provide for levy of excise duty only on goods manufactured or produced in India. The measure of tax could be based on the quantity or value and in most cases, it is based on the value. 11. If the officers find that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd sold. 15. By raising a demand on receipts, the officers who issued the SCN, the OIO and the impugned order effectively charged central excise duty on income or rather the revenue of the appellant which militates against the very basis of excise duty which is chargeable only on excisable goods manufactured or produced. 16. The appellant had an explanation as to why the amounts received as per Form 26AS were more than the value of the goods manufactured and cleared as per ER1 returns. According to the appellant that the amounts pertained to past supplies. 17. In the impugned order, the Commissioner (Appeals) rejected this explanation on the ground that the appellant could not show the reconciliation. The question which arises is on whom does the burden of proof lies . Section 102 of the Evidence Act clarifies this position and it reads as follows: 102. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 18. There is no contrary overriding provision in the Central Excise Act. Therefore, section 102 of the Evidence Act applies and in case of Show Cause Notices issued under Central Excise Act, the burden of p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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