JAY YUHSHIN LIMITED Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THIS matter has come up before this Larger Bench on reference by a Two Member Bench vide Miscellaneous Order No. 26/2000 -A dated 11 -5 -2000. The Referral Order was made while hearing an Appeal filed by M/s. Jay Yuhshin Ltd. against Order -in -Original passed by the Commissioner of Central Excise, New Delhi by which a duty demand of Rs. 55, 91, 225/ - was confirmed against the assessee under Section 11A (1) of the Central Excise Act, 1944 and an equivalent amount of penalty imposed on them under Section 11AC of the Act apart from holding that interest on the aforesaid amount of excise duty will also be payable by the assessee under Section 11AB of the Act.

(2.) THE Referral Order had noted that there was a conflict of views between different Benches of this Tribunal on the question raised before the Bench, viz., that in a case where the Department alleges intention to evade payment of duty, whether it was sufficient if the assessee shows that he had an alternative procedure available to him which, if followed, would have allowed him the benefit of set off or Modvat credit, thus making the alleged short levy/non -levy of duty, Revenue -neutral and whether that would be sufficient ground for establishing that there was no intention to evade duty.

(3.) ON behalf of the assessee it had been argued that there was a catena of decisions of the Tribunal (mentioned in Para 3 of the Referral Order) supporting the contention that no intention to evade payment of duty can be attributed to an assessee where the situation results in Revenue -neutrality. As against this there was a decision of another coordinate Bench of the Tribunal in the case of M/s. International Auto Products (P) Ltd. v. CCE [1999 (35) RLT 58 (CEGAT)] holding that the plea of Revenue neutrality will not be sufficient to hold that there was no intention to evade duty.