M/S. Foremost Industries (India) Ltd vs Cce, Meerut-I

IN THE CUSPTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI

Date of Hearing/ Decision12.08.2015

Excise Appeals Nos. E/3434, 3436 and 3437/2004

[Arising out of Order-in-Appeal No.142-145/CE/MRT-I/2004 dated 12.03.2004 passed by the Commissioner of Central Excise, Meerut).

M/s. Foremost Industries (India) Ltd. Appellants

Adarsh Deve , General Manager,

A.C. Gupta

Vs.

CCE, Meerut-I Respondent

Appearance:

Rep. by Shri B. Garg, Advocate for the appellant.

Rep. by Shri Ranjan Khanna, DR for the respondent.

For approval and signature:

Honble Shri Ashok Jindal, Member (Judicial)

Honble Shri B. Ravichandran, Member (Technical)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

Coram: Honble Shri Ashok Jindal, Member (Judicial)

Honble Shri B. Ravichandran, Member (Technical)

Final Order No. 52554-52556/2015 dated:12.08.2015

Per Ashok Jindal:

The appellants are in appeals against the impugned order demanding duty along with interest and imposing penalty on all the appellants. The facts of the case are that the main appellant was manufacturing Skimmed Milk Powder since 1968 under the brand name of INDANA which was the brand name of their another related concern, M/s. Indodan Industries Ltd., which was working since 1962. Since their inception, sometimes duty was levied on their final products sometimes it was not but the appellant was manufacturing Skimmed Milk Powder under the brand name of INDANA. From 2.6.1998 till 18.07.98, the central excise duty was levied on Skimmed Milk Powder and the appellant filed a declaration before the Central Excise Authorities that they are manufacturing Skimmed Milk Powder under the brand name of INDANA which was owned by them as M/s. Indodan Industries Ltd. stopped their production in the year, 1994. The Revenue demanded duty for the impugned period as they were using the brand name of another person, therefore, they are not entitled to SSI exemption during the impugned period. In adjudication order, the demand of duty was confirmed along with interest and various penalties on all the appellants were imposed. Aggrieved from the said order, the appellants are before us.

2. Ld. Counsel for the appellant fairly conceded that as they were using the brand name of third party, they were liable to pay duty during the impugned period. Therefore, there is no dispute regarding the payment of duty. He only prayed that in the circumstances, in this case, penalty on all the appellants be waived. He also took the support of the order of BIFR dated 10.06.2010,wherein observations was given that the appellant be exempted from penal provisions from Central Excise Act.

3. On the other hand, Ld. Authorised Representative reiterated the findings in the impugned order.

4. Heard the parties. Considered the submissions.

5. In this case, there is no dispute for payment of duty which has fairly been admitted by the appellant that they are liable to pay duty. Therefore, the appellant shall pay duty along with interest. Now, we come to the issue of penalty. We find that in this case although the observations had been made by BIFR not to take any penal action against the appellant, which is not binding on us but we consider the factual matrix of the case that the appellant is manufacturing Skimmed Milk Powder since 1968 under the brand name of INDANA. Only for a short period of 47 days, the duty was levied on the said product, therefore, it cannot be said that the appellant was having any malafide intention not to pay duty on the products. It is only issue of interpretation that when the appellant is using the brand name of third party, they are entitled for SSI exemption or not. Therefore, we hold that in such circumstances, penalty is not imposable on the appellants. With these terms, we pass the following order:-

(1) Demand of duty along with interest is confirmed, and

(2) Penalties on all the appellants are set aside.

6. The appeals are disposed of with consequential relief.

( Ashok Jindal )

Member (Judicial)

( B. Ravichandran)

Member (Technical)

Ckp.

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