TaxTMI 
TaxTMI 
2017 (6) TMI 670
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....Co. (E/472/2007), had been supplying Ozone water purifiers with brand name of VCNPL engraved on the top Cover of the plastic box. It however appeared that as these goods were cleared with the brand name of others, exemption contained in the Notification No. 8/2001, shall not be available to the appellant and that they would have to discharge duty liability without the said exemption. Accordingly, SCNs dated 09.05.2006 & 26.05.2006 were issued to the appellants, inter-alia proposing demand of differential central excise duty for the period 2002-03 amounting to Rs. 12,33,461/- under the proviso to Section 11 A (1) of the Central Excise Act, 1944, along with interest under Section 11 AB ibid and imposition of equal penalty under Section 11 AC ibid on M/s. Water & Co.; as also a penalty under Rule 26 of the Central Excise Rules 2002 on Smt. Raji Radhakrishnan, Proprietrix of M/s. Water & Co. 3. On Similar grounds and allegations, another demand of differential central excise duty for the period 2002-03 amounting to Rs. 60,17,219/- under the proviso to Section 11 A (1) of the Central Excise Act, 1944, along with interest under Section 11 AB ibid and imposition of equal penalty under Se....
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.... had supplied the same goods in the same packing to other buyers. 7.2. Ld. Advocate has contended that at the time of visit of the officers, the factory was closed and there was no manufacturing activity, hence the department has not been able to place any evidence with regard to their allegation that their products were cleared with the brand name of VCNPL. On this contention, however, it is to be noted that there was no manufacturing activity and clearances going on at the particular time, there is no way the departmental officers and intercept the goods at the stage immediately after the clearances. They would necessarily have to go by the available evidence within the factory and also lent support the same with statements of the persons concerned. This is certainly been done. The huge quantity of top and bottom covers of Ozone water purifiers embossed with the name of VCNPL definitely serves to prove that the appellants were using them for clearances of the goods to VCNPL. We cannot fathom any other reason for these covers to be present in the appellants factory. 7.3. It is further found that corroborating statements not only were obtained from the concerned persons of the ap....
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....Appellant in E/515/2007). As a result of the investigation, it appeared that the appellants were clearing the goods affixing the brand name of VCNPL and were not eligible to avail the SSI exemption. It also appeared that appellants are not eligible for SSI exemption for the reason that they had utilized the common area for manufacture and clearance of goods used by other manufacturers also. Show Cause Notices dated 09.05.2006, 26.5.2006 and 28.05.2006 were issued to all the appellants proposing to deny SSI exemption and demanding differential duty besides imposition of penalties. After due process of law, the adjudication Commissioner inter-alia confirmed demand of differential central excise duty for the period 2001-02 and 2002-03, on both magnetic kits and ozone water purifiers amounting to Rs. 68,88,192/- under the proviso to Section 11 A (1) of the Central Excise Act, 1944 along with interest under Section 11 AB ibid and imposition of equal penalty under Section 11 AC ibid on M/s. Business Development Corporation; similarly confirmed demand of differential central excise duty for the period 2001- 02 and 2002-03, amounting to Rs. 97,52,772/- under the proviso to Section 11 A (1)....
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....d in India. Therefore, the department has correctly classified it under 94.04. 13. We have heard the submissions made by both sides. 14.1. The issue in these appeals relates to two products namely Magnetic kits, Ozone water purifier. The allegation with regard to the violation of Notification No. 8/2001, with regard to usage of brand name of another person is similar to the facts in appeal Nos. E/472/2007 & E/477/2007 as above. Applying the same discussions to the present appeals, we are of the considered view that the evidence findings and conclusion in the above case will apply to these appeals also. Hence, in respect of the Ozone Water Purifier as also the magnetic kits, since manufactured bearing the trade name of others, will fall foul of para-4 of the SSI exemption Notification No. 8/2001-CE, consequently they cannot avail of the duty exemptions extended in the said Notification. 14.2. The only issue left to be addressed in these appeals is related to the classification of Magnetic kits. Lld. Counsel has referred to Boards Circular dated 29.05.2003 to contend that the product has to be classified under 90.19 and that it is not to have any prospective effect; that therefore....
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....reof, which, is Nil and 4% for the period under dispute. 14.8. We are, therefore of the considered opinion that differential duty liability on the impugned goods namely Magnetic kits will have to be calculated on the basis of effective duty rates as applicable to the goods under chapter heading 90.19 of CETA, viz., Nil upto 01.03.2002 and 4% after 01.03.2002. For this limited purpose, both the appeals E/473/2007 and E/476/2007 will required to be remanded for denovo adjudication to the adjudicating authority to recalculate duty liability only in respect of this item. Ordered accordingly. 14.9. Now we take up the pleas on the matter of penalty. 14.10. Ld. Advocate points out that duty liabilities involved in respect of these appeals are as follows:- S. No. Period Product Duty involved 1. 10/12/2001 to 22/02/2002 Ozone Water Purifier Rs. 7,47,552 2. 01/12/2001 to 27.03.2002 Magnetic kit Rs.27,17,440 3. 30.04.2002 to 30.11.2002 Magnetic kit Rs.34,23,200 Rs.61,40,640 14.11. We do not find any reason for interfering with imposition of penalty under Section 11 AC ibid, equal to differential duty liability determined in respect of O....