MAHESWARI INDUSTRIES Vs. COMMISSIONER OF C. EX., HYDERABAD

JUDGEMENT

(1.) APPEAL No. E -4/2008 was filed by M/s. Maheswari Industries against Order No. 49/2007 dated 26 -9 -2007 passed by learned Commissioner (A) in Appeal Case No. 28/2007 before him arising out of OIO No. C. EX - 02/2007 dated 16 -1 -2007, rejecting appeal of appellant assessee on merit as well as limitation except holding that penalty u/s 11AC of Central Excise Act, 1944 (hereinafter referred to as the Act) shall be reducible to the extent of duty paid before issue of show cause notice.

(2.) LEARNED Commissioner (A) held that the term Maniar was a brand name belonging to one Maniyar Plast Ltd., Jalgaon was used by the appellant affixing the same to the goods manufactured by the later and thereby connection in the course of trade was established between the brand name and the products manufactured by the above appellant. Learned Appellate Authority further held that given that facts that MPL is not entitled to the benefit of the Notification exempting small scale industries, the appellant is also disentitled to the same. It was also held by learned appellate authority below that turnover was computable on the basis of records seized in the course of search. On limitation issue he held that positive act of suppression having been found, the proceeding was not time barred. So far as penalty u/s 11AC of the Act is concerned he held that an amount of Rs. 10.00 lakhs having been paid by the assessee before issue of show cause notice, that shall be confined to the extent of duty unpaid.

(3.) REVENUE being aggrieved by reduction of penalty as hereinbefore stated, came in appeal against that decision of the learned Commr. (A) and that appeal was registered before Tribunal as Appeal Case No. E - 867/2007.