2012 (11) TMI 360 - AT - Central Excise

Restoration of appeal - denying the benefit of Notification No. 08/2003-CE dated 1.3.2003 - Held that - In view of the clear provisions of the Notification No. 08/2003-CE applicants have not made out a case for total waiver of duty as they were manufacturing and clearing goods with the brand name of Godrej which does not belong to the applicants. The applicants are directed to deposit the amount of duty of Rs.3,41,639/- within a period of six weeks and in view of the financial hardship as pleaded, the pre-deposit of interest and penalty is waived for hearing of the appeal - matter is remanded to the Commissioner (Appeals) to decide the appeal on merits, on showing the pre-deposit of the above mentioned amount.

Summary

Issues:
1. Restoration of appeal and application for waiver of dues.
2. Eligibility for waiver of duty under Small Scale Exemption Notification.
3. Compliance with Section 35F of the Central Excise Act.

Analysis:
1. The judgment deals with the restoration of the appeal and application for waiver of dues. The applicant initially filed an appeal along with an application for waiver of dues, but due to non-receipt of the notice of hearing for the waiver application, the appeal was dismissed for non-compliance with Section 35F of the Central Excise Act. The applicants, upon realizing the situation only after being asked for the dues, filed an application for restoration. The Tribunal, considering the reasons provided, recalled the order dismissing the appeal and restored both the appeal and the application for waiver of pre-deposit of the dues to their original numbers.

2. The applicants sought a waiver of duty amounting to Rs.3,41,639 based on the Small Scale Exemption Notification. The demand was confirmed by denying the benefit of the Notification since the goods were cleared with the brand name of another entity. The applicants contended that the goods were for captive use of a specific company, hence they should be entitled to the benefit of the Notification. However, the Tribunal referred to Notification No. 08/2003-CE dated 1.3.2003, which clearly states that manufacturers clearing goods with the brand name of others are not eligible for the Notification's benefits. Consequently, the Tribunal found that the applicants did not establish a case for a complete waiver of duty. They were directed to deposit the duty amount within six weeks, with a waiver of interest and penalty due to financial hardship, for the appeal hearing.

3. The Commissioner (Appeals) had dismissed the appeal earlier for non-compliance with Section 35F of the Central Excise Act, without deciding on the merits of the case. The Tribunal set aside the Commissioner's order and remanded the matter back to the Commissioner for a decision on the appeal's merits. The applicants were required to show pre-deposit of the duty amount mentioned earlier, and they were to be given an opportunity for a hearing. The appeal was disposed of through remand, allowing for a fresh consideration of the case.