TMI Blog2019 (8) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Act, 1944 does not stand the test of reason. It is in the nature of scheme of alternative assessment under section 4A of Central Excise Act, 1944 that the manufacturer, literally wears his intent on his sleeve and the marking of the maximum retail price on the product is the surest indicator of the goods being intended for the retail customer. This clear manifestation of intent on the part of the appellant must inevitably lead to duty liability in accordance with section 4B of Central Excise Act, 1944. Naturally such a resort is contingent upon non-eligibility for the exemption available to small scale unit under notification no. 8/2003- CE dated 1st March 2003. The appellant is a manufacturer and the brand/logo is not theirs. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4/- on the clearances effected between July 2004 and January 2005 as well as on the goods seized at the premises of M/s TVC Sky Shop Ltd. The seized goods were confiscated but permitted to be released on discharge of redemption fine of ₹ 51,000/-. In addition, penalties were imposed on the manufacturer, as well as the owner of the brand name, under rule 25 and rule 26 of Central Excise Rules, 2002. The first appellate authority while upholding the demand and interest as well as the penalty under section 11AC set aside the penalties under rule 25 and rule 26 without modifying the fine determined for redemption of the seized goods. While M/s Bio Care Laboratory challenged the upholding of duties, interest and penalty, M/s TVC Sky Shop L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the first time before the Tribunal. He placed reliance on the decision of Jayanti Food Processing (P) Ltd v. Commissioner Of Central Excise, Rajasthan [2007 (215) E.L.T. 327 (SC)]. He also contends that the decision in re Omni Protect Drugs Pvt Ltd would not apply to the present case as the issue in dispute therein was the valuation system to be adopted on clearance of physician s samples. Here the manufacturer cannot claim that the activity was being carried out as job work even if it was, undoubtedly, contract manufacturing. According to him, the bar of limitation will not sustain as erroneous dependence on an inapplicable judgment is no reason entertain such notions. The decision in re Prakash Industries, according to him, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s clear manifestation of intent on the part of the appellant must inevitably lead to duty liability in accordance with section 4B of Central Excise Act, 1944. 5. Naturally such a resort is contingent upon non-eligibility for the exemption available to small scale unit under notification no. 8/2003- CE dated 1st March 2003. The appellant is a manufacturer and the brand/logo is not theirs. There is no evidence on record that contract purchaser, the supplier of brand name/logo, is entitled to the same exemption. In the absence of such a claim, the eligibility to exemption becomes questionable. It would appear that the appellant has misplaced applicability of the decision of the Larger Bench in re Prakash Industries which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. RA Shaikh Paper Mills P Ltd [2016 (335) ELT 203 (SC)] has held that it was mandatory for adjudicating authority to include such option within the order the option to reduce penalty. Such an option was not given at the two lower stages. This must be corrected. 9. For the reasons highlighted above, we uphold the confirmation of duty liability, the confiscation of goods along with imposition of penalty, fine thereon for redemption as well as penalty under section 11AC of Central Excise Act, 1944. However, we also extend the privilege of reduced payment of penalty subject to fulfilment of condition. Appeals are accordingly allowed with enumerated modifications. (Order pronounced in open court on 05.08.2019) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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