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TMI Blog2010 (1) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... the course of trade was established between the brand name and the products manufactured by the above appellant. Learned Appellate Authority further held that given that facts that MPL is not entitled to the benefit of the Notification ex empting small scale industries, the appellant is also disentitled to the same. It was also held by learned appellate authority below that turnover was computable on the basis of records seized in the course of search. On limitation issue he held that positive act of suppression having been found, the proceeding was not time barred. So far as penalty u/s 11AC of the Act is concerned he held that an amount of Rs. 10.00 lakhs having been paid by the assessee before issue of show cause notice, that shall be confined to the extent of duty unpaid. 3. Revenue being aggrieved by reduction of penalty as hereinbefore stated, came in appeal against that decision of the learned Commr. (A) and that appeal was registered before Tribunal as Appeal Case No. E -867/2007. 4. Search operation was conducted to the premises of the Appellant and other related premises on 6-10-2005. Investigating Officers found that the Appellant was manufacturing goods bearing brand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stic moulded chairs without payment of appropriate duty; (ii) Rule 9 of Central Excise Rules, 2002 in as much as they have manufactured and cleared excisable goods i.e. branded plastic moulded chairs without obtaining Central Excise registration; (iii) Rule 10 of Central Excise Rules, 2002, in as much as they have not maintained a proper account of the total production and clearance of branded plastic moulded chairs; and (iv) Rule 11 of Central Excise Rules, 2002 in as much as they have made clearances of branded plastic moulded chairs without the cover of proper Central Excise invoice, 8. Considering that Revenue's interest was prejudiced, Notice was issued to the Appellant on 26-5-2006 to show cause why: (i) Plastic Moulded Chairs manufactured by it should not be classified under Chapter Sub-Heading No. 9403.00 up to 28-2-2005 and under 9403 70.00 w.e.f. 1-3-2005 of the Central Excise Tariff Act, 1985 and "Maniyar" brand plastic chairs, baby chairs and stool valued at Rs. 13,98,288/- seized in the course of investigation shall not be confiscated u/r 25 of Central Excise Rules, 2002; (ii) An amount of Rs. 46,30,026/- towards CENVAT and Rs. 75,722/- towards Education Cess (t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tries and M/s. Maheswri Industries (the appellant) were related persons. Noticing that there was deliberate suppression of facts and abuse of process of law made with intention to evade duty liability, the proceeding was held to be not time barred u/s 11A and Penalty was imposed u/s 11AC of the Act and order of Adjudication gave rise to following consequences:- (1) Plastic Moulded Chairs manufactured and cleared by M/s. Annapurna Industries were classifiable under Chapter Sub-Heading No. 9403.00 from June, 2003 up to 28-2-2005 and under SH 9403 &. 70.00 w.e.f. 1-3-2005 of the Central Excise Tariff Act, 1985; (2) "Maniyar" brand plastic moulded chairs, baby chairs and stool to tally valued at Rs. 13,98,288/- were liable to confiscation under Rule 25 of the Central Excise Rules, 2002; However, those were redeem able on payment of redemption fine of Rs.1,00,000/- in lieu of confiscation under Rule 25(2) of the Central Excise Rules. (3) An amount of Rs. 15,80,232/- was recoverable towards CENVAT and Rs. 20,420/- towards education Cess, aggregating Rs. 16,00,652/- under Section 11A(2) of the Central Excise Act, 1944. (4) An amount of Rs. 10,00,000/- deposited by M/s. Annapurna Indu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that appellant had manufactured goods under a brand name belonging to a third party. Only because somebody tendered oral evidence against the appellant that does not ipso facto takes away SSI exemption benefit from the appellant. There was no nexus. The appellant was not deniable of SSI exemption benefit following Board Circular No. 52/52/94-CX dated 1-9-1994 which is interpretable in favour of the appellant. There was no clandestine removal made by the appellant. She further submitted that the adjudication proceeding was time barred since Show Cause Notice was issued in this case on 5-4-2006 and there was no suppression of fact at all. There was no liability to duty or penalty at all in view of SSI exemption permissible to the appellant. The appellant was under bonafide belief that it was neither liable to duty on the goods manufactured by it nor there shall be any reg istration required under law for SSI benefit to it. So also it was under honest belief that SSI exemption benefit was available to it as owner of brand name in terms of the Notification aforesaid for which no duty liability arose. There was no deliberate intention to cause prejudice to Revenue. Accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greement in 2002-03 between the appellant concern and M/s. Maniyar Plast Ltd. for manufacture of above branded goods by the appellant and the brand belonged to Maniyar Plast Ltd. This evidence all along remained unrebutted. 17. Materials gathered and evidence recorded from different persons as stated in para 5, 6 & 7 of the order of Adjudication shows that the appellant had manufactured and cleared plastic moulded chairs, baby chairs and stoolds from December, 2003 onwards demonstrating that the goods were affixed with brand name. 18. Oral evidence as evaluated and appreciated by learned Adjudicating Authority 'in Para 17 and 20 of the order of adjudication proved that the appellant manufactured its goods using brand names from December 2003 on wards and there was nothing on record to the contrary. No cogent evidence was brought out by the Appellant to discard the allegations made in Show Cause Notice or the findings made in adjudication. There was no retraction of evidence at any stage of the proceeding nor also any evidence was led to discard the same. Revenue has amply discharged its burden proof bringing the case of suppression of fact and evasion of Revenue. Appellant was al ..... 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