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TMI Blog2010 (1) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... pective of part of duty paid before issuance of show cause notice - Appeal of the assessee is dismissed and Revenue appeal is allowed. - E/4/2008 and E/867/2007 - 11-12/2010 - Dated:- 13-1-2010 - Dr. Chittaranjan Satapathy, Member (T) and Shri D.N. Panda, Member (J) REPRESENTED BY: Ms. Kusum Rangnath, Advocate, for the Appellant. Ms. Sudha Koka, SDR, for the Respondent. [Order per: D.N. Panda, Member (J)]. - Appeal No. E-4/2008 was filed by M/s. Maheswari Industries against Order No. 49/2007 dated 26-9-2007 passed by learned Commissioner (A) in Appeal Case No. 28/2007 before him arising out of OIO No. C. EX - 02/2007 dated 16-1-2007, rejecting appeal of appellant assessee on merit as well as limitation except holding that penalty u/s 11AC of Central Excise Act, 1944 (hereinafter referred to as "the Act") shall be reducible to the extent of duty paid before issue of show cause notice. 2. Learned Commissioner (A) held that the term 'Maniar' was a brand name belonging to one Maniyar Plast Ltd., Jalgaon was used by the appellant affixing the same to the goods manufactured by the later and thereby connection in the course of trade was established between the brand name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (in the account of M/s. Maniyar Plast Ltd., Jalgaon) for the manufacture of "Maniyar" brand plastic moulded chairs, baby chairs and stools and started manufactue of the same and cleared that from December, 2003 onwards. 6. Statement was recorded from the proprietor of the appellant Sri Na rayan Loya 13-10-2005. Such statement revealed that an agreement was entered into by him(the appellant) with M/s. Maniyar Plast Ltd., Jalgaon to manufacture "Maniyar" brand plastic moulded furniture w.e.f. 2002-03 and such brand be longs to that company. Moulds were supplied by the company and those were used in manufacture of moulded plastic furniture. Statement was recorded from Sri Srikanth Maniyar, Director of Maniyar Plast Ltd. to find out the nexus between the parties. He confirmed that "Maniyar" brand belongs to this company. 7. On the basis of out come of investigation, the Appellant faced following charges for contravention of law as under and made liable to pay Central Excise duty with other consequences of law to follow (i) Rules 4 and 6 of Central Excise Rules, 2002 inasmuch as they have cleared excisable goods i.e. branded plastic moulded chairs without payment of appropriate d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nging to another and whether eligible for the benefit of SSI exemption under Notification No. 8/2003 dated 1-3-2003 against the assessee and the consequences of law if any, to follow. He tested the facts of the case on the basis of law and evidence on record and reached to the conclusion that the Appellant manufactured and cleared goods carrying brand name of another for which claim of SSI exemption was deniable. To hold so, learned Adjudicating Authority followed the ratio laid down by the Apex Court decision in the case of CCE, Trichy v. Rukmani Pakkwell Traders - 2004 (165) E.L.T. 481 (S.C.). While dealing with the plea of exemption, he also examined Board's circular on the subject. 10. In Para 38 of order-in-original, learned Adjudicating Authority found that statement recorded on 10-10-2005 from Sri Pavan Kumar Soni, Ex. Manager of Appellant established that Sri Narayan Loya, proprietor of the Appellant concern was relative of Maniyar family of Jalgaon and Sri Anand Sarada in charge of Appellant concern in his statement dated 7-12-2005 proved that proprietor of Amba International, M/s. Lakshmi Venkatesh Industries, M/s. Annapurna Industries and M/s. Maheswri Industries (th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons in Para 9 to 21 of the order appealed, that authority concurred with the findings and conclusion drawn by him. How ever he granted reduction in penalty u/s 11AC of the Act by extent of amount paid before issuance of Show Cause Notice. 12. Both parties being aggrieved by the order passed by the learned first appellate authority came to Tribunal in the respective appeals registered as hereinbefore stated. 13. Learned Advocate Ms. Kusum Ranganath appearing for the Appellant assailed the impugned order on the principal ground that Maniyar Plast Ltd. was not brand owner of the brand "Maniyar" since there was no evidence on record to establish the same and the appellant was thereby entitled to the SSI ex emption in terms of the Notification No. 8/2003 as SSI. The Appellate Authority below misconstrued the provisions of SSI exemption notificational benefit even though there was no established nexus between the appellant and the alleged mould owner mould was not supplied by Amba International of Mumbai on be half of Maniyar Plast Ltd. and there was no evidence to this effect on record. Revenue has not discharged its burden of proof on its stand as to the fact that appellant ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by both the learned authorities below. The appellant had evaded legitimate duty payable to the Central Excise Authority. She further submitted that the amount of duty liability deposited before issuance of Show. Cause Notice shall not grant any reduction in quantum of penalty u/s 11AC of the Act for no mandate of law in this regard. The moment ingredients of Section 11A of the Act exist, penalty u/s 11AC to the extent of equal amount duty becomes payable. Therefore varying of the order of adjudication by learned Commr (A) in respect of imposition of penalty was erroneous and entire Adjudication order therefore calls for confirmation in toto. 15. Heard both sides and perused the record. 16. The evidence gathered in the course of investigation proved that of fixture of brand name to the goods made that marketable and brought out the nexus of the goods with the brand name affixed thereto. No evidence came for ward to show that "Maniyar" brand mould was not sent by M/s. Amba International of Mumbai to the Appellant on account of M/s. Maniyar Plast Ltd. of Jalgaon. Proprietor of the Appellant tendered evidence on 13-10-2005 stating that there was an agreement in 2002-03 between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Revenue seeking no registration under the Act, and the appellant suppressing material facts before the Central. Excise Authority,, made it liable to adjudication u/s 11A of the Act. The adjudication proceeding was nothing time barred. At the second appellate stage, for no evidence coming to record to impeach the findings made by the learned appellate authority below both on merits and limitation, the appellate observation stands. However first appellate decision to confine penalty to the extent of duty unpaid' is reversible in absence of statutory mandate sup porting his decision. We order accordingly. 20. Plastic moulded chairs a tools were covered under Ch. Sub Heading No. 9403.00 of CETA, 1985 (under Ch. Heading No. 9403 70.00 w.e.f. 1-3-2005), and were chargeable to Central Excise duty and 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, it 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 penalty is permissible since intention to evade duty was proved in this case calling for such levy of penalty to be equal to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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