JUDGMENT :

SANJIB BANERJEE, CJ.

1. This is the second round of proceedings, so to say, and the assessee is in appeal upon duty, interest and penalty being levied on the assessee for non-payment or short payment of duty for a period more than one year prior to the date of issuance of the show-cause notice. At the relevant point of time, Section 11A of the CENTRAL EXCISE ACT , 1944 provided for a period of limitation of one year. However, the period of limitation would not apply if the short-levy or non-payment or the like was as a result of any fraud or collusion or any wilful misstatement or suppression of facts or contravention of any of the provisions of the Act or the rules made thereunder with intent to evade payment of duty. It is evident that for the Department to issue a show-cause notice, at the relevant point of time, for short payment or non-payment of duty and the like for a period beyond a year from the date of issuance of the notice, the element of mens rea on the part of assessee had to be established.

2. At the relevant point of time, Section 11A of the CENTRAL EXCISE ACT , 1944 provided for a period of limitation of one year. However, the period of limitation would not apply if the short-levy or non-payment or the like was as a result of any fraud or collusion or any wilful misstatement or suppression of facts or contravention of any of the provisions of the Act or the rules made thereunder with intent to evade payment of duty. It is evident that for the Department to issue a show-cause notice, at the relevant point of time, for short payment or non-payment of duty and the like for a period beyond a year from the date of issuance of the notice, the element of mens rea on the part of assessee had to be established.

3. The key words in the relevant expression in Section 11A are “with intent to evade payment of duty”. Fraud, collusion, misstatement and 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 appellant 1 during the period 2002-03 and 2003-04.

(ii) Since the SSI Exemption is granted for the turnover upto the value of Rs.1 crore, the time when the appellant crossed this turnover limit of one crore needs to be ascertained.

(iii) Whether for the reason that the benefit of exemption under Notification No 32/1999-CE (as amended from time to time) will be admissible to the appellant 1, appellant can be said to have intention to evade payment of duty, to invoke extended period of limitation as per proviso to Section 11A(1) of the CENTRAL EXCISE ACT , 1944.”

6. The assessee started its production