TMI Blog2019 (6) TMI 1244X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of wall putty is same at ₹ 1050/-. The appellants have failed to adduce any concrete evidence to contradict the above findings of the adjudicating authority. There is nothing wrong in adopting the MRP which was found mentioned on the packing of finished goods which was put for seizure at the factory premises of the appellant for deciding the effective rate of clearance for the relevant financial years. The investigation has established beyond doubt that the appellants have been engaged in the manufacture of wall putty, decorative white cement etc. with the brand name of some other person and on the basis of record of clearances recovered by the investigation team, it is established that the appellants have crossed the exemption limit which is available for SSI units and therefore, they should have been taken a proper Central Excise registration from the Excise authorities. They were also required to make clearances of products manufactured and branded with other persons brand name on payment of Central Excise duty which they have failed. Appeal dismissed - decided against Appellant. - Excise Appeal No. 53674-53675/2014 - FINAL ORDER NO. 50801 /2019 - Dated:- 25-6- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factured and cleared by them under the brand name Suraksha Gold and the product without any brand name have been valued at the MRP price declared for the product with for the brand name Diamond Gold which has higher MRP value then actual value of Suraksha Gold and without any brand putty and, therefore, it resulted in demanding higher amount of Central Excise duty and confirmation of same by the adjudicating authority. It has been the contention of the appellant that goods manufactured and cleared under the brand name of Diamond Gold is of superior quality, hence the MRP price are higher for Diamond Gold brand and the goods which are manufactured under the brand of Suraksha Gold and products without any brand are comparatively of the lower quality and as a result, the MRP of these two products are on the lower side to that of Diamond Gold Brand. Thus, it was stressed that the adjudicating authority has wrongly taken price of superior grade putty for valuing the lower grade putty. It has also been contended that they are eligible for SSI notification benefit for the financial year 2012-2013 as aggregate value of the clearances during financial year did not exceed ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect of these bags was required to be done under section 4 of the Central Excise Act, 1944, on transaction value , and not on MRP as per Section 4A of Central Excise Act, 1944. For the disputed period the total MRP on such bags comes to ₹ 2,41,64,255/-. In these cases, the demand needs to be re-quantified. 5. The learned advocate has also contested that the seizure of the goods valued at ₹ 14,14,350/- found in the factory premises could not have been confiscated as the same were recorded in their private records and were not yet been cleared from the factory premises. The learned advocate has also pleaded that penalty under Rule 26(1) of Central Excise Rules, 2002 is not imposable on either Shri Sumit Gautam and Shri Narender Kumar Gautam as show cause notice nowhere brings out their role in actively associating with the alleged evasion of Central Excise Act /Rules. It has further been added that they have not physically dealt with the goods and therefore, the penalty under Rule 26(1) is not imposable on them. 6. We have also heard learned Departmental Representative who has defended the findings of Order-in-Original. 7. Having h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring necessary inquiries that these parties have been found as non-existing or there is manufacturing activity of such kind of goods. 8. Thus, we find that the investigations have brought it out very firmly and categorically that the appellants have been engaged in the manufacture of wall putty and decorative white cement and other cement paints etc. They have also been found using brand name Diamond Gold belonging to other person namely M/s. Diamond Waterproof Compound Pvt. Ltd. and even during the investigation, they have tried to mislead the proceedings by stating that the goods are being got manufactured on job work basis from some other manufacturers, however, it has been established that the goods were being manufactured by the appellants only. 9. The other argument which have been taken by the appellants in their defence is that while calculating the value of the clearance of the goods manufactured by them, the MRP value of Diamond Gold brand has been adopted for Suraksha Gold and for the product which were without any brand names and as the Diamond Gold being a superior quality product, the value of the same cannot be adopted for another b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... financial years. We do not find any illegality in the seizure and confiscation of finished goods valued at ₹ 14,14,350/- under Rule 25 of the Central Excise Rules, 2002 as it has been established that same was manufactured with the brand name of other persons and the manufacturing has taken place without taking valid registration from the Central Excise Department and the appellant have been clearing the dutiable goods without payment of Central Excise duty. We also find that the issue of the classification for the decorative white cement and its implication of applicability of the Rule 3 of the Legal Metrology (Packaged Commodities) Rules, 2011 is raised by the learned advocate before this Tribunal only. We find that this ground has never been taken by the appellant before the adjudicating authority and therefore, raising a fresh ground of defence before the Tribunal on which the adjudicating authority has not given any finding, is legally not maintainable. 11. In view of above facts of the matter, we find that investigation has established beyond doubt that the appellants have been engaged in the manufacture of wall putty, decorative white cement etc. with the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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