2010 (9) TMI 497 - AT - Central Excise

SSI exemption - Limitation - Penalty u/s 11AC - Use of Brand name of another person - Appellant had also procured reprocessed granules without bills to enable it to manufacture goods and clear the same without sales bills/invoices - No rebuttible evidence could be led by the Appellant to prove its claim of no use of brand name nor could it prove that the brand name belonged to it - No credible evidence could be led by the appellant to prove clearances of goods made were in accordance with law and SSI exemption benefit was permissible - Held that - the Appellant not being found to be eligible for SSI exemption as the goods manufactured and cleared by it was affixed with brand name of others the Appellant was rightly made liable to duty u/s 11A of the Act as well as levy of penalty u/s 11AC of the Act - No reduction in imposing penalty is permissible since intention to evade duty was proved in its case calling for such imposition which should be equal to the amount of duty evaded irrespective of part of duty paid before issuance of show cause notice.

Summary

Issues Involved:
1. Eligibility for SSI exemption under Notification No. 8/2003.
2. Use of brand name belonging to another person.
3. Invocation of extended period of limitation.
4. Imposition of penalties under Section 11AC of the Central Excise Act, 1944.
5. Confiscation of goods under Rule 25 of the Central Excise Rules, 2002.
6. Requirement of Central Excise registration.
7. Admissibility of Cenvat credit.
8. Remand of order for re-adjudication.

Issue-wise Detailed Analysis:

1. Eligibility for SSI Exemption under Notification No. 8/2003:
The Tribunal examined whether the Appellant was entitled to the SSI exemption under Notification No. 8/2003. The Appellant claimed that it was the owner of the brand names used on the plastic chairs. However, the Tribunal found that the brands and moulds belonged to Shri Rahamatullah, not the Appellant. It was determined that the Appellant was not entitled to the SSI exemption as the brand names did not belong to it. The Tribunal upheld the findings of the adjudicating authority and the Commissioner (Appeals) that the Appellant was not eligible for the exemption.

2. Use of Brand Name Belonging to Another Person:
The Tribunal confirmed that the Appellant used brand names that belonged to Shri Rahamatullah. The evidence showed that the Appellant was manufacturing goods using brand names such as "Lalkamal," "Ceilo," "Rosekamal," and "National," which were owned by Shri Rahamatullah. The Tribunal found that the Appellant's claim of ownership of the brand names was not substantiated by any agreement or credible evidence. The use of another person's brand name without proper authorization disqualified the Appellant from claiming the SSI exemption.

3. Invocation of Extended Period of Limitation:
The Tribunal upheld the invocation of the extended period of limitation under Section 11A of the Central Excise Act, 1944. It was found that the Appellant had deliberately suppressed material facts and evaded duty liability. The Tribunal agreed with the adjudicating authority's finding that there was deliberate suppression of facts and abuse of the process of law with the intention to evade duty. Therefore, the extended period of limitation was applicable.

4. Imposition of Penalties under Section 11AC of the Central Excise Act, 1944:
The Tribunal confirmed the imposition of penalties under Section 11AC of the Act. It was held that the Appellant was liable for penalties equal to the amount of duty evaded. The Tribunal found that the Appellant had intentionally evaded duty by using another person's brand name and not registering with the Central Excise Authority. The Tribunal reversed the first appellate authority's decision to reduce the penalty to the extent of the amount paid before the issuance of the show-cause notice, stating that there was no statutory mandate for such a reduction.

5. Confiscation of Goods under Rule 25 of the Central Excise Rules, 2002:
The Tribunal upheld the confiscation of goods valued at Rs. 3,19,200/- under Rule 25 of the Central Excise Rules, 2002. It was found that the Appellant had cleared branded plastic moulded chairs without proper Central Excise invoices and without payment of duty. The goods were liable to confiscation, and a redemption fine of Rs. 30,000/- was imposed in lieu of confiscation.

6. Requirement of Central Excise Registration:
The Tribunal confirmed that the Appellant had violated Rule 9 of the Central Excise Rules, 2002, by manufacturing and clearing excisable goods without obtaining Central Excise registration. The Appellant's failure to register and pay the appropriate duty on branded plastic moulded chairs was a clear contravention of the law.

7. Admissibility of Cenvat Credit:
The Tribunal noted that the adjudicating authority had partially entertained the plea for Cenvat credit. The Appellant was allowed Cenvat credit of Rs. 1,43,716/- and Education Cess of Rs. 1,154/-, which were adjusted towards the duty confirmed. The Tribunal did not find any reason to interfere with this part of the adjudication.

8. Remand of Order for Re-adjudication:
The Tribunal upheld the Commissioner (Appeals)' decision to remand the order of confiscation passed by the Assistant Commissioner for re-adjudication. The Tribunal found no reason to disturb this part of the appellate decision as there was no pleading by the Appellant in this respect.

Conclusion:
The Tribunal dismissed the appeal of the assessee and allowed the Revenue's appeal. The Appellant was found not eligible for SSI exemption, and penalties and confiscation were upheld. The Tribunal reversed the reduction in penalty granted by the first appellate authority and confirmed the adjudication order in its entirety. The remand order for re-adjudication remained undisturbed.