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2018 (10) TMI 822 - CESTAT MUMBAI100% EOU - SSI Exemption - use of brand name - Alleging that the product attracts normal rate of duty@ 16% in terms of Sr. No. 3 of Notification 23/2003-CE dated 31.3.2003, as the pickle was cleared bearing ‘brand name’ in unit containers, being not exempted during the period 28.2.2005 to 28.2.2006, demand made. Whether the appellant is entitled to avail the benefit of Notification No. 23/2003-CE (Sr. No. 4)? Held that:- The learned Commissioner (Appeals) taking into consideration the fact that such notification is not available to pickles being cleared in unit containers affixing the brand name upheld the order of the adjudicating authority - it is correctly held that in respect of branded pickles put up in unit container cleared and sold by the appellant during the period 28.02.2005to 28.02.2006 are liable to duty @ 16% instead of 9% as correctly held in the Order in Original (OIO). Time bar - Held that:- When the fact of goods bearing a brand name and put up in unit container is. not declared in returns, there is no way a Central Excise Officer can know about it. CERA or internal audit, if done, as claimed by assessee would not come to his rescue as audits are done on basis of selection and do not cover entire gamut of activities or documents - Moreover if documents are not revealing the correct status, the auditors will also not be able to know the reality by scrutinizing them. Therefore, the appellant is liable for penal action under Section 11 A(1) of the Central Excise Act, 1944.” Appeal dismissed - decided against appellant.
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