2010 (2) TMI 616

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....able Oil and Fat) and an equal amount penalty was imposed under Section 11AC of the Central Excise Act, 1944 and interest at the appropriate rate on the amount of duty was also charged under Section 11AB of the said Act, on the ground that the Appellant cleared the Branded Vanaspati after the levy of duty w.e.f. 1-3-2003, under the guise of Unbranded Vanaspati. The Unbranded Vanaspati Oil is exempted from payment of duty under Notification No. 06/2003-C.E., dated 1-3-2003. 3. Contention of the Appellant is that the quantity of 116.052 MT of Branded Vanaspati valued at Rs. 50,55,846.00 and 46.125 MT and 1470 Ltrs. valued at Rs. 28,34,752.00 was manufactured prior to 1-3-2003 i.e. introduction of duty in the budget of 2003-04, and th....

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....oice whereby 'SHIVA' brand was mentioned. The contention of Revenue is that prior to the levy of duty with effect from 1-3-2003, as the Appellant was manufacturing and clearing the branded goods, hence it cannot be said that immediately after the introduction of levy, the Appellant stopped manufacturing branded goods. Therefore the demand was rightly made. 5. We find merit in the contention of the Appellant that prior to 1-3-2003, there was no Central Excise Duty in respect of the goods manufactured by the Appellant. The duty was introduced first in the Pre-Budget, 2003-04 with effect from 1-3-2003. The Unbranded Vegetable Oil was exempted under the Notification No. 06/2003-C.E., dated 1-3-2003. A quantity of 116.052 MT and 46.125 ....

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....s were received under the invoices where 'SHIVA' brand was mentioned. The Appellant relied upon the decision of the Tribunal in the case of Bhushan Kumar (supra). We find in the case of Bhushan Kumar, the finding is that the goods were not manufactured and therefore, the demand was set aside. In the case of Valan Beedi Works (supra), the Tribunal after going through the evidence on record held that in absence of any invoice or bill etc. evidencing purchase of raw materials and manufacture of branded goods, the demand is not sustainable. Similarly in the case of Superex Industries (supra) where the Revenue wanted to deny the SSI exemption on the ground that the branded goods were manufactured and cleared by the assessee, the Tribunal held th....