2023 (1) TMI 52 - AT - Central Excise

Recovery of Central Excise Duty alongwith interest and penalty - SSI Exemption - clubbing of clearances - non-clearance of the excisable goods under proper invoice - non-payment of appropriate duty on the clearances of the excisable goods - non-assessment of excisable goods cleared from their Powai outlet - non-filing of periodical returns with the department showing the details of the production and removal of excisable goods - HELD THAT - This show cause notice was adjudicated as per order-in-original and the appeal against the said order has been dismissed by the Commissioner (Appeals) as per the impugned order. The issue involved in the present case is no longer res integra and has been decided by various authorities - Reliance can be placed in the case of M/S. RAMANI HOTELS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, MUMBAI-V 2022 (9) TMI 1055 - CESTAT MUMBAI where it was held that The show cause notice itself makes an averment that the appellants operate under the name and style of Ramee Guestline Hotel and have cleared the goods with the brand name and logo belonging to Ramee Guestline Hotel. If that is the case, then the appellants were clearing the goods under the brand name and logo held by them - they cannot be hit by clause 3(b) of Notification No.8/2003. Appeal allowed - decided in favor of appellant.

Issues:
1. Central Excise duty non-payment on clearances of goods.
2. Imposition of penalty under Section 11AC of the Central Excise Act.
3. Demand for interest under Section 11AB of the Central Excise Act.
4. Appropriation of deposited amount against the demand.

Central Excise Duty Non-payment on Clearances of Goods:
The appeal was directed against the Order-in-Appeal upholding the Order-in-Original which determined and demanded an amount not paid on clearances of goods by the appellant. The appellant, a manufacturer of cakes and pastries, was found to be clearing products without paying central excise duty. Investigations revealed that the appellant was a subsidiary of another company and was functioning as a franchise for a Singapore-based company, manufacturing bakery products under the brand name 'Bread Talk.' A show cause notice was issued to the appellant for non-payment of duty on clearances of goods valued at a specific amount over a certain period. The Order-in-Original demanded the unpaid amount, imposed interest under Section 11AB, and a penalty under Section 11AC of the Central Excise Act.

Imposition of Penalty under Section 11AC:
The Commissioner imposed a penalty under Section 11AC of the Central Excise Act on the appellant for not paying the duty on clearances of excisable goods, failing to clear goods under proper invoice, not assessing excisable goods, and not filing periodical returns. The penalty was imposed in conjunction with Rule 25(1) of the Central Excise Rules, 2002. The appellant was directed to pay the penalty along with the demanded amount and interest.

Demand for Interest under Section 11AB:
In addition to the duty demand and penalty, interest under Section 11AB of the Central Excise Act was demanded from the appellant for not paying the appropriate central excise duty on the cleared goods. The appellant was directed to pay the interest along with the other adjudged amounts.

Appropriation of Deposited Amount Against the Demand:
The show cause notice also mentioned the appropriation of a specific amount deposited by the appellant against the demand. The deposited amount was to be appropriated against the total demand stated in the notice. The Order-in-Original confirmed the appropriation of the deposited amount against the duty demand.

The Tribunal, after considering the impugned order and submissions made during the appeal, found that the issue had been previously decided by various authorities. Citing relevant precedents, the Tribunal set aside the impugned order and allowed the appeal. The decision was pronounced in open court, overturning the Commissioner's decision and ruling in favor of the appellant.

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