2017 (6) TMI 622

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....from the assessee, equal penalty imposed under Section 11 AC of the Central Excise Act, 1944 as also penalty of Rs. 10,000/- under 173 Q of the Central Excise Rules. In appeal, the Commissioner (Appeals), vide impugned order dated 10.01.2007, set aside the order of the original authority on the ground that aggregate value of clearances have to be quantified after taking into consideration of the goods cleared under concessional rate of duty as well as full rate of duty, and remanded the matter to the lower appellate authority for passing a fresh order after taking into consideration of the same. Aggrieved, Department is in appeal before this forum. 2. Today when the matter came up for hearing, on behalf of Revenue ld. AR, Shri K. Veerabhad....

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....(156) ELT 482 (Tri.-Mum.). 3. On the other hand, ld. Advocate for the respondent assessee submits the following:- a) If the brand name of the respondents have not been affixed or embossed as long as the same has been indicated in the invoices, it cannot be stated that they are not manufactured the goods using logo etc. of the other person owning brand name. She relies on the ratio of the Hon'ble Apex Court judgment in the case of CCE, Jamshedpur Vs. Tubes & Structurals - 2015 (318) ELT 362 (S.C.) and CCE, Chennai Vs. Australian Foods India (P) Ltd., - 2013 (287) ELT 385 (S.C.). b) Even if normal duty has been paid on the same consignment before crossing the limit on benefit of exemption, it does not amount to going out of exemption as ....

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....not known. It is therefore very obvious that the respondent assessee has effected clearances in clear violation of condionalities of notification No. 9/1999. 5.2 A closer study of the facts thus indicate that the assessee had made these clearances in a well thought and calculated manner and not therefore in inadvertence or error. 5.3 At the same time, much as the ld. AR would have us believe that condition No.2 of the Notification will mean withdrawal from the availment of the exemption notification, and result in ab initio total denial of notification benefits for the beginning of the financial year, in our considered opinion, such a conclusion is neither spelt out in the notification nor is in resonance with the general scheme and inten....