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TMI Blog2018 (11) TMI 1456X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant had malafide intention. The ld. Commissioner on his own viewed that the goods packed in Manikchand brand should have been repacked in RMD brand and sold. This is also beyond the jurisdiction of the ld. Commissioner for the reason that whether the goods can be repacked and sold it is completely on the assessee to decide after analyzing the practicability, feasibility and viability. There is no dispute that the goods for which remission was claimed, were packed in the brand name of Manikchand and due to injunction order passed by the District Judge, Mandaleshwar, the said goods, in such a condition, was not capable of being sold by the appellant. Therefore, this is a clear case that the goods were unfit for mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed an impugned order whereby the application dated 23.01.2006 and re-application dated 22.05.2015 were rejected on the following grounds. (a) that, since the appellant immediately after injunction order, started manufacturing Pan Masala/ Gutkha under the brand name RMD . The stock which was lying under the brand name Manikchand could have been repacked and sold under RMD brand. (b) that, the appellant had malafide intention by using the brand name Manikchand as by way of losing at all the levels in the Court of law till the Hon'ble Supreme Court, in respect of brand name case, the appellant appeared to have violated the Intellectual Property Rights by using the brand name Manikchand . (c) that the appellant had filed ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, first of all, the Adjudicating Authority cannot comment that the appellant had malafide intention, particularly when reference to a case related to infringement of Intellectual Property Right. Therefore, on this ground also the ld. Commissioner would not have dismissed the application. He further submits that the appellant have filed application on 23.01.2006 which was disposed of by the impugned order only on 06.06.2017, therefore, at this stage, the Adjudicating Authority cannot say that at the time of making application the goods were fit for marketing. Moreover, the goods were meant for domestic sale and when the application was made it was already expired. Therefore, the remission application was maintainable. 3. Shri Amit K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ote that in the process of destruction of goods, it is not the department alone forgoing excise duty of ₹ 2,70,17,147/- but the appellant is also losing the value of such goods which is much more than the duty of excise. Therefore, for claiming the destruction of the goods and remission of duty thereon, the malafide intention cannot be attributed to the appellant. The Adjudicating Authority has gravely erred in giving a finding that the appellant could have exported the goods for which remission was claimed. Here again, the Commissioner has failed to understand that, whether the goods can be exported or sold in the domestic market, is the sole discretion of the assessee. The ld. Commissioner, by giving various reasons, is trying to st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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