2011 (10) TMI 292 - AT - Central Excise

SSI - Applicant manufacturing cakes and pastries under brand name kwality subsequently named changed to Jamal bakery - Revenue argued brand name kwality do not belong to applicant - non compliance of Section 35F appeal dismissed - Held That - Case remanded back on direction to deposit 90,000 only.

Summary

Issues:
1. Waiver of pre-deposit of duty, interest, and penalty.
2. Eligibility for Small Scale Exemption Notification.
3. Financial hardship claim.
4. Compliance with provisions of Section 35F of the Central Excise Act.

Analysis:
1. The applicant sought waiver of pre-deposit of duty, interest, and penalty amounting to Rs.1,76,127/-, as the appeal was dismissed by the Commissioner (Appeals) for non-compliance with stay order conditions. The Tribunal directed the applicant to deposit Rs.90,000 within six weeks, with the remaining amount waived upon deposit, and recovery stayed for appeal hearing.

2. The applicant contended eligibility for Small Scale Exemption Notification No.8/2003-CE, citing the use of the brand name 'Kwality' under which goods were cleared. However, the Revenue argued against eligibility, stating that the brand name did not belong to the applicant. The Tribunal found that clearing goods under the brand name 'Kwality' did not warrant total waiver of duty, leading to the directed deposit.

3. Additionally, the applicant pleaded financial hardship due to being a small unit, emphasizing that the full deposit would cause undue hardship. Considering the circumstances and financial hardship claimed, the Tribunal ordered the specified deposit amount and waived the remaining pre-deposit of interest and penalty.

4. The Commissioner (Appeals) had dismissed the appeal for non-compliance with Section 35F of the Central Excise Act, without delving into the merits of the case. The Tribunal set aside the order, remanding the matter to the Commissioner (Appeals) for a decision on the appeal's merits post the deposit of Rs.90,000, ensuring an opportunity for the appellant to be heard. The appeal was disposed of through remand, focusing on compliance with legal provisions and due process.