Per A.C.C. Unni :

This matter has come up before this Larger Bench on reference by a Two Member Bench vide Miscellaneous Order No. 206/2000-A dt. 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 suffi