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TMI Blog2024 (11) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... ed order] passed by the Commissioner in the remand proceedings. 2. The facts which lead to the issue of this order are that the appellant was a small-scale industry engaged in manufacture of mobile chargers, etc. in the brand name ERD which brand name was owned by Shri Sanjeev Bharadwaj. The appellant was not registered with the central excise department because Small Scale Industries [SSI] manufacturing goods up to a value of Rs. 1.5 crores were exempted from payment of central excise duty. Consequently, they were also not required to obtain registration under the Central Excise Act, 1944 [Act]. This exemption to the SSI is, however, not available if the brand name of another person is put on the manufactured goods. 3. Receiving intellig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which CENVAT credit can be taken or a registered dealer, - (a) removes any excisable goods in contravention of any of the provisions of these rules or the notifications issued under these rules; or (b) does not account for any excisable goods produced or manufactured or stored by him; or (c) engages in the manufacture, production or storage of any excisable goods without having applied for the registration certificate required under section 6 of the Act; or (d) contravenes any of the provisions of these rules or the notifications issued under these rules with intent to evade payment of duty, then, all such goods shall be liable to confiscation and the producer or manufacturer or registered person of the warehouse or an importer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned order. 10. We have considered the submissions advanced from both sides and perused the records. 11. The issue had attained finality in the first round of litigation insofar as the availability of the SSI exemption to the appellant is concerned. Accordingly, the Commissioner dropped the demand in the impugned order. 12. As far as the confiscation of goods and imposition of penalty under Rule 25 are concerned, following the decision of Gujarat High Court in Saurashtra Cement Ltd. [2010 (260) E.L.T. 71 (Guj.)], the Delhi High Court held in Ganpati Rolling Pvt. Ltd. [2016 (338) E.L.T. 587 (Del.)] that Section 11AC is a condition precedent for taking action under Rule 25. Relevant portion of this judgment is reproduced below: 9. The ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voking Section 11AC of the Act, the condition precedent is that the duty has not been levied, or paid or short-levied or short-paid or the refund is erroneously granted by reasons of fraud, collusion or any wilful misstatement or suppression of facts. If these ingredients are not present, penalty under Section 11AC cannot be levied. Since Rule 25 can be invoked subject to the provisions of Section 11AC of the Act, as a natural corollary, the ingredients mentioned in Section 11AC are also required to be considered while determining the question of levying of penalty under Rule 25 of the Central Excise Rules." 10. In other words, if the ingredients of Section 11AC are not shown to be fulfilled, the penalty under Section 11AC cannot be levie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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