TaxTMI 
TaxTMI 
2011 (3) TMI 1128
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....he question has to be gone into by the Tribunal only if such a plea was raised by the appellants in the grounds of appeal before the Tribunal. In other words the Tribunal is directed to consider the issue regarding the penalty imposable under Section 11AC of the said Act subject to the grounds in that regard raised in the memo of appeal before the Tribunal. 2. The learned advocate for the appellants drawing our attention to the orders passed by the original Authority and lower Appellate Authority submitted that the appellants were selling the goods packed in plain boxes which did not carry the brand name of another person and the carry-bags bearing brand of another person were used merely for transportation of the goods sold to the customers. However, they did not form part of the said transaction and hence it cannot be said that appellants lack bonafide in assuming their entitlement to avail benefit of SSI Notification No. 8/2000-CE dated 1st March 2000. He further submitted that the appellants had paid the duty much prior to issuance of show cause notice as the duty was paid on 18th of October 2000, whereas the show cause notice was issued on 5th February 2001. He also submitt....
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....ded period of limitation having not been challenged, the imposition of penalty is justified in the facts and circumstances of the case. 3. It cannot be disputed that in terms of the remand order by the Hon'ble Delhi High Court the scope of inquiry in this appeal in relation to the issue of penalty has been restricted to the grounds raised in the memo of appeal before the Tribunal. Para 15 of the remand order is very clear to that effect. It has been specifically stated that "we make it clear that this question would be gone into by the CESTAT only if such a plea was raised by the assessee in the grounds of appeal before the Tribunal". 4. On perusal of the memo of appeal, the same undoubtedly discloses the contention having been raised to the effect that the penalty is not imposable. It also discloses four grounds on which the said submission has been made. Firstly, that the duty to the tune of Rs. 4,11,190/- was paid on 18th October 2000 when the officers of the excise department visited their factory, which was prior to issuance of show cause notice dated 5th February 2001. Secondly, the appellants had not contravened any of the provisions of the excise law to warrant imposi....
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....e availing SSI exemption even though the same was not available to those persons using the brand name of another person for their product yet they continued to clear the goods with the use of the brand name by paying royalty to the another person to whom the brand name belonged to and yet continued to avail the exemption benefit under 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. Perhaps in the absence of visit by the excise officers to the factory of the appellants, they would have continued to avail the benefit of exemption without payment of duty, even though they were not entitled to avail such benefit. 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 ....
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....3 (S.C.), wherein the Apex Court has clearly laid down the law that in case of penalty under Section 11AC there is no discretion given to the authorities in relation to the quantification of the penalty and it has to be equivalent to the amount of duty defaulted. Being so, the decision of Hon'ble Delhi High Court in CCE vs. Malbro Appliances P. Ltd. (supra) case can be of no help to the appellants. 9. The decision of the Tribunal in Kathuria Portfolios vs. CCE, Delhi - I (supra) was to the effect that since the issue involved was in respect of interpretation of small-scale exemption, no penalty was called for. 10. It is true that the appellants has raised the ground to the effect that the issue involved in the matter relates to the availability of benefit under notification and that the same is pure question of law. The contention is totally devoid of substance. The availability of benefit under notification was not claimed on the basis of interpretation of notification was on the ground that factually the appellants are not using the brand name on the goods cleared by the appellants and the brand name is affixed only on the carry bags. As already observed that apart from mak....