9911796707
TMI Blog2019 (2) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... no reason to interfere with the findings of the Adjudicating Authority that the appellant will not be entitled to the benefit of the SSI exemption. In any case, for the periods 2004-2005 to 2006-2007, the appellant themselves did not claim the SSI benefit, since in the total aggregate value of clearances in the previous financial years had exceeded the upper limit of ₹ 3 crores. Time limitation - Held that:- From record, it is seen that the appellant, who started manufacture of the products similar in 2003, did not approach the department with intimation of the same and did not take registration with the Jurisdictional Central Excise Authorities. Only in 2006, they appeared to have got in touch with the Central Excise Superintendent who issued clarification dated 28/02/2006 to the effect that they were not required to obtain Central Excise Registration - the appellant cannot be absolved of the allegation of suppression - the findings of the lower authority upheld justifying the demand of Central Excise by invoking the extended period of time limit under Section 11A. Area Based exemption - N/N. 32/1999 dated 8/7/1999 - Held that:- It is not clear whether the appellant h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w Cause Notice dated 07/04/2008 was issued to the assessee as well as the two directors proposing the demand of Central Excise Duty for the disputed period, without the benefit of SSI Notification. After the due process of adjudication, the impugned order was issued in which the Adjudicating Authority confirmed the proposals made in the Show Cause Notice and ordered payment of Central Excise Duty amounting to ₹ 2,14,11,650/- along with interest under Section 11AB and penalty under Section 11AC for an amounting equal to the Central Excise demanded. In addition to appropriating an amount of ₹ 23,84,947/-, already paid by the assessee towards the duty liability for the disputed period, the Adjudicating Authority also imposed penalties of ₹ 2 lakhs each on S. B. Sharma as well as P. K. Sharma, directors of the assessee. The impugned order is challenged in the present appeals. 3. All the appellants are represented by Shri Devraj Sahu, Ld. Advocate and Revenue is represented by Shri K. Choudhary, Ld. AR. 4. The Ld. Advocate submitted that the duty demand and penalties imposed are liable to be set aside for the following reasons:- (i) The appellant assessee was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see has the legal status of a Private Limited company and as such enjoys a distinct legal status from that of the partnership firm, even though the directors in the Private Limited Company are partners in the partnership firm. He further added that even if the brand name is used by the appellant with the NOC from the owner of the brand name, it cannot be considered as use of brand name belonging to the appellant. As such, he supported the findings of the Adjudicating Authority that the appellant will not be entitled to the benefit of SSI Notification on account of the use of the brand name not belonging to the appellant. (ii) The Ld. DR further submitted that the item manufactured by the appellant, Soya Bari, is very much covered within the Central Excise Tariff under Chapter 21. For the period when the tariff had six digit classification, the item was covered under CETH 2108.99. In this connection, he referred to the Chapter Note 9 under chapter 21 which inter alia includes Protein concentrates and textured protein substance . The item Soya Bari is in the nature of textured protein substance. For the period subsequent to 1/3/2005, when the tariff has eight digit classification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any case, for the periods 2004-2005 to 2006-2007, the appellant themselves did not claim the SSI benefit, since in the total aggregate value of clearances in the previous financial years had exceeded the upper limit of ₹ 3 crores. 8. The demand for Central Excise Duty confirmed in the impugned order has been seriously contested by the appellant only on the ground of time bar. It has been submitted on behalf of the appellant that they were under the bonafide belief that the goods manufactured by them were not liable to payment of duty, in view of the fact that the item Soya Bari did not find specific mention in the Tariff under Chapter 21. They have claimed that they became aware of the duty liability only with the issue of Notification No. 3/2006 dated 01/03/2006. In this connection, we observe that the Chapter Note 9 to Chapter 21 (upto 28/2/2005) as well as chapter note 5 for the subsequent period make it clear that textured protein substances would be classifiable under 2108 of the tariff (upto 28/02/2005) and 2106 for the subsequent period. Accordingly, we are unable to accept the plea of the appellant that they were under the bonafinde belief that the goods manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
