TMI Blog2018 (10) TMI 822X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the learned Commissioner (Appeals), who in turn, rejected their appeal. Hence, the present appeal. 3. None present for the appellant despite notice. The matter has been listed on 14.6.2018, 26.7.2018 and today i.e.11.9.2018, all these days none appeared nor there has been any request for adjournment. Accordingly, the learned AR for the Revenue submits that further adjournment in the matter would not yield any result. Hence, the appeal itself is taken up for disposal after hearing the learned AR for the Revenue. 4. The learned AR for the Revenue has contended that undisputedly the appellant during the relevant period cleared the pickles put up in containers bearing the brand name owned by them as well as M/s ITC Ltd. into DTA by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod under contention i.e 28.02.2005 to28.02.2006. As per Notification No.' 3/2005 C.E dated24.02.2005 (Sr.No.9), goods of chapter 20 are exempted if the goods are not packed in unit containers and do not bear a brand name. Since the appellant had manufactured the goods and packed the same in unit containers affixing brand name, the goods attract duty as per Sr. No. 3 of Notification No. 2312003-CE dated 31.03.2003 i.e. central Excise duty as per Section 3 of the Central Excise Act, 1944 @ 16% ad valorem. Hence, 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 010. Further, the facts were accep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in absence of incomplete information in theER-2 returns. 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. 6. No contrary evidence has been placed by the appellant. Consequently, the impugned order is uphe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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