2008 (11) TMI 214

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....led with direction to pay duty at concessional rate in terms of Notification No 9/98 C.E. in respect of specified goods manufactured and cleared by them during the said period either without brand name or under their own brand name There is also a penalty on the assessee After examining the records, we find that the case is arising pursuant to a remand order of the Hon'ble High Court vide Stanlek Engg. Pvt. Ltd. v. CCE Mumbai-III 2008 (229) E.L.T. 61 (Bom.) wherein our earlier final order was set aside and it was directed that the appeal be taken up for de novo consideration. Before the Hon'ble High Court the party raised the grievance that two judgments of the Tribunal cited before this bench in the earlier round was not considered There L....

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....rand name) on payment of duty, in the aggregate value of clearances for the purpose of determining the SSI exemption eligibility. The department look the view that the value of such clearance (under another's brand name) should have been taken into account in determining the aggregate value of clearances for the purposes of Notification 8/98-C.E. They also considered the case as one of 'simultaneous availment of SSI exemption and Modvat credit' and, on this basis, the benefit of Notification 8/98-C.E. was proposed to be denied to the assessee. Accordingly, a show-cause notice was issued to the assessee, demanding duty in terms of Notification No. 9/98-C.E. and proposing penalty. These proposals are contested. In adjudication of the dispute,....

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....stant case. The issue which arose in that case was whether the assessee could simultaneously avail of SSI exemption in respect of their own goods and avail of the benefit of Modvat credit while paying duty on goods manufactured on job work basis. On this issue, the Tribunal held in favour of the assessee. 4. The reliance placed by counsel on Nebulae Healthcare (supra) is also seen to be apposite inasmuch as, in that case, the question whether the Apex Court's decision in Ramesh Food Products (supra) could be applied was also examined. On the question whether clearances of branded goods were to be taken into account for determining the aggregate value of clearances for purposes of Notifications 8/2003 etc., it was held as under: "The p....

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.... brand name or trade name of another person ineligible for SSI benefit should not be taken into account. The ld. Counsel has referred to this provision and has submitted that this provision virtually recognised the assessee's claim that they were entitled to the benefit of exemption in respect of their unbranded and own-branded goods while paying duty on goods affixed with third party's brand name. We have found substance in this argument of the assessee, which is squarely supported by case law cited by counsel. 5. The case law relied on by the appellant's counsel supports their claim that (a) the goods cleared under third party's brand name were to be considered as out of the purview o Notification No. 8/98-C.E. (b) these goods which we....