TaxTMI 
TaxTMI 
2026 (9) TMI 951
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....vice Tax Appellate Tribunal, East Zonal Bench, Kolkata in Excise Appeal No. 281 of 2005 with Cross-Objection No. 109 of 2005. By the impugned order, the appellant has been denied the benefit of exemption under Notification No. 6/2003-CE dated 1st March, 2003. The appellant is aggrieved thereby. 2. The relevant entry of the notification, so far as it is material for the present purpose, reads as follows: "All goods (other than (a) partially or wholly hydrogenated vegetable fats and oils and 'Vanaspati', and (b) bakery shortening, bearing a brand name and put up in unit containers for retail sale) - Nil. Explanation.- For the purposes of this exemption, 'brand name' means a brand name, whether registered....
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....rom its factory premises assorted varieties of the final product 'Vanaspati' bearing the brand name and in the style of 'Shiva', falling under sub-heading No. 1504.00 of the Schedule to the Central Excise Tariff Act, 1985, aggregating to a value of Rs. 28,34,752/-. On further scrutiny it was alleged to have been revealed that the appellant had cleared 116.052 M.T. of branded 'Vanaspati' packed in unit containers for retail sale falling under heading No. 1504.00 of the Central Excise Tariff Act, 1985. The appellant was called upon to produce, at the time of showing cause, the evidence upon which it proposed to rely in support of its defence. 5. The appellant duly replied to the Show Cause Notice. An order-in-original was thereafter passed....
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....er stated before us that the goods manufactured and cleared by the appellant after 1st March, 2003 did not bear any brand name whatsoever. The word 'Shiva' appeared only upon the sale invoices under cover of which the goods travelled, and not upon the goods or the containers in which the goods were packed. That being the position, the exclusion carved out of Notification No. 6/2003-CE dated 1st March, 2003 is not attracted, and the respondent authorities have wrongly denied the appellant a benefit to which it is otherwise entitled. It has been further submitted that the show cause notice and the order-in-original were both signed by the same person, who was then the Commissioner of Central Excise, Haldia Commissionerate. 9. Learned advoc....
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....so placed reliance upon Commissioner of Central Excise, Jamshedpur v. Superex Industries reported at 2004 (174) E.L.T. 4 (S.C.). There, the Supreme Court held that the benefit of the notification would be lost only if the manufacturer affixes upon the specified goods the brand name or trade name of another who is not eligible for the exemption under the notification. It was noticed that it could not be denied that the name 'Kirloskar' was not affixed to the generating sets, and that the Tribunal had held that merely because, in the invoices, the set was passed off as a Kirloskar generating set, the benefit of the notification would not be lost. The Supreme Court found no infirmity in that reasoning and declined to interfere. 12. The appe....
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.... agents/distributors have been relied upon by the revenue. The material gathered by the revenue therefore establishes the very fact contended for by the appellant, namely, that the brand name appeared upon the invoices alone and not upon the goods. 15. The revenue cannot be permitted to rely upon this material to the extent that it assists the revenue and to discard the very same material to the extent that it does not. Having chosen to build its case upon the statements of the agents/distributors, it is not open to the revenue to impeach those statements upon the solitary ground that they are couched in similar language, particularly when the deponents were not confronted with any such objection and no other material has been brought on....
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....none. 19. So far as the demand of duty has been found to be unsustainable, the penalty imposed under Section 11AC of the Act of 1944, which is referable to and dependent upon such demand, cannot survive. In any event, the dispute in the present case turned upon the true construction of an exemption notification. No material has been brought on record to establish fraud, collusion, wilful misstatement or suppression of facts with intent to evade payment of duty, which is a condition precedent for the invocation of Section 11AC of the Act of 1944. The imposition of penalty is, therefore, unsustainable. 20. The first substantial question of law, as to whether the Tribunal was correct in holding that the branded goods were manufactured an....