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TMI Blog2011 (3) TMI 1128X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the said exemption notification till the date of visit by the excise officers to their factory. It was only after the visit by the excise officers to their factory that the appellants paid the duty. However, no interest for delayed payment of duty was paid. Very fact that the appellants awaited the visit of excise officers to their factory to pay the duty in relation to period of about one and half year itself discloses lack of bonafide. There is no explanation coming from the appellants as to what prevented them from clearing those dues prior to 18th October 2000 even though their Director has admitted that they knew that they were using the brand name of another person for their goods and for that purpose they were also paying royalty to such another person. Mere payment of duty, and that too only duty without any interest for delayed payment, cannot by itself be a ground to evade the liability in relation to the penalty. Thus the case is squarely covered by the provisions of Section 11AC and hence the 100% penalty was imposable in the matter. - E/2033 of 2004 & 2034 of 2004 - 321-322/2011-EX(PB) - Dated:- 17-3-2011 - Shri Justice R.M.S. Khandeparkar, Shri Rakesh Kuma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f CCE, Coimbatore vs. Ooty Bakers Confectioners (P) Ltd. reported in 2008 (228) E.L.T. 607 (Tri. - Chennai), Supercoat Industries, Chennai vs. CCE, Chennai - II reported in 2008 (225) E.L.T. 477 (Tri. - Chennai), Cookie Man Foods India (P) Ltd. vs. CCE, Chennai reported in 2006 (196) E.L.T. 425 (Tri. - Chennai), CCE, Indore vs. Kumer Industries reported in 2010 (249) E.L.T. 78 (Tri. - Del.), CCE vs. Malbro Appliances P. Ltd. reported in 2007 (208) E.L.T. 503 (Del.), Kathuria Portfolios vs. CCE, Delhi - I reported in 2003 (158) E.L.T. 355 (Tri. - Del.), Piccaso Home Products. Vs. CCE, Daman reported in 2005 (189) E.L.T. 48 (Tri. - Mumbai), and CCE, Rohtak vs. Surya Vinayak Industries Pvt. Ltd. reported in 2010 (258) E.L.T. 513 (Tri. - Del.). On the other hand, the Departmental Representative submitted that the issue of penalty has to be decided within the parameters of the grounds sought to be raised in the memo of appeal in view of specific direction in that regard by the Hon'ble Delhi High Court in the remand order. Drawing our attention to the show cause notice and the findings arrived at by the authorities below, he submitted that Shri M.L. Aggarwal, Director of the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty, it is pertinent to note that the appellants have not contested the duty demand confirmed under the order passed by the Adjudicating Authority. The Additional Commissioner by his order dated 31st December 2001 had confirmed the demand to the tune of Rs. 4,11,190/- and had imposed penalty of equal amount against the appellants company under Rule 173Q readwith Section 11AC of the Act and the personal penalty of Rs. 10,000/- against Shri M.L. Aggarwal, Director of the company under Rule 209A of the Central Excise Rules, 1944. There is a clear recording to that effect in the earlier order passed by the Tribunal on 30th August 2004 and the same was never challenged by the appellants. The said duty demand related to the period from 16th April 1999 to 17th October 2000 and the show cause notice in that regard was issued on 5th February 2000. The duty amount was paid as already stated above on 18th October 2000. In other words as rightly pointed out by the Departmental Representative, the appellants did not dispute their liability to pay the duty and non-availability of exemption benefit under the SSI exemption notification in question. Simultaneously they also did not dispute invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alf of the appellants that their case had been that the goods were not cleared with the brand name but they were packed in white boxes without any name being affixed on the box and brand name was used only on carry bags which were used by the customers to carry the product enclosed in the boxes and that the carry bags did not form the part of transaction between the appellants and their customers, no such ground has been raised in the memo of appeal. That apart by mere raising the defence without placing any evidence in support thereof is not sufficient to contend that the appellants did not lack bonafide. In order to justify the said action, which was specifically pleaded by the appellants in defence, it was necessary for the appellants to place corroborative piece of evidence on record. It was more so, in view of clear admission on the part of the Director of the appellants company about the full knowledge about the notification as well as use of brand name on payment of royalty to another person. However, the appellants did not make any efforts in that regard. 8. All the decisions which are sought to be relied upon are essentially on the merits of the case as to whether the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion on the part of the Director of the appellants about use of brand name of another person for the product of the appellants. Knowing well this aspect, the appellants has raised the specific defence in their reply, however, the appellants did not produce any material on record to support the plea raised by them in their reply. There was no question of interpretation of law or question of law involved in the matter. It was essentially a matter of appreciation of facts and the appellants failed to place on record the necessary facts to warrant a finding in their favour. Obviously, therefore, the decision of the Tribunal in Kathuria Portfolios vs. CCE, Delhi - I (supra) is of no help to the appellants. 11. The last ground relating to the penalty is relating to consolidated amount of penalty imposed under Rule 173Q and Section 11AC. The learned advocate for the appellants has not even attempted to make this ground good in the course of his argument and perhaps rightly so and, therefore, we do not deal with the same. 12. About the violation of provisions of law, once it is the duty liability is not disputed and the records disclose default in payment thereof, it goes without saying ..... X X X X Extracts X X X X X X X X Extracts X X X X
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