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TMI Blog1999 (9) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... Chairman of the applicant, B.W. Pethe in his statement dated 9-4-1998. The observation on the statement of the said person is contrary to the evidence. There is a categorical statement of B.W. Pethe that they did not have any logo or brand name. The latest orders in the case of R.G. Cotton Industries v. C.C.E., Patna in 1999 (107) E.L.T. 657 appearing on 1st May 1999 issue, supports the applicants case in holding that the judgment of the Apex Court in Astra Pharmaceuticals is in all force in the case and hold that the mark RGGI used in the wrapper of the goods in a stylish manner representing the name of the appellant company in abbreviated from highlights the image of the manufacturer and cannot be said to be a brand name and the exemption Notification 185/87 cannot be denied. For the purpose of Notification 1/93 in order that the family name can be held as trade name or brand name it has necessarily to fall in line with the expressed provision of definition under explanation IX irrespective of the fact whether such family name has been registered as such under the Trade Mark Law. PETHE logo is not registered under the Trade Mark Law. There is no justifiable reason to uphold the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... balance sheet now produced coupled with the poor performance of sales and its recovery, and the applicants having heavy liability to meet an account of loss in the business, they have no sufficient liquidity to meet unforeseen circumstances, and are facing undue hardship. In the course of the arguments the ld. Counsel had no chance to place this material. 3. In support of the application, the ld. Counsel for the applicant has submitted in the course of the arguments that he was not provided with an opportunity to submit reply to the arguments of the JDR. The principles of natural justice were not observed by the Commissioner in passing the impugned order as mentioned in the stay application and the appeal memorandum with serious irregularities and patent errors committed in passing the stay order. There is a breach of statutory provisions enjoining on the Commissioner to give effective healing in the course of the adjudicating proceedings. The reply to the show cause notice and the submissions made during the hearing under the note is not appreciated and the government Circular No. 52/52-94 and interpretation of Explanation IX of the Notification 1/93 it is necessary to have a l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants have challenged the stay order for the review and/or modification. As contended by the ld. JDR, submission of the ld. counsel is focussed mainly on the merits of the appeal. The scope of this proceedings is only limited to the modification of the stay order, and not for the review, which is not within the purview of the Bench. The stay order can be modified only to the limited extent of deterioration of the financial condition of the applicant as per the decision in 1990 (48) E.L.T. 270 in the case of Vishnu Processors v. C.C.E. and 1990 (50) E.L.T. 180 in the case of Eapann Forge Pvt. Ltd. v. C.C.E. and also 1993 (63) E.L.T. 245 in the case of Prem Nath Monga Foods and Beverages Pvt. Ltd. v. C.C.E. and at page 257 in the case of Nissan Rubber v. C.C.E. and page 570 in the case of Techno Pack Ltd. v. C.C.E.. The modification is also permissible on the latest decision subsequent to the passing of the stay order, which applies to the case on hand. Modification is permissible in the light of the later decisions suporting the stand of the appellant on the merits of the issue in the appeal as per 1995 (79) E.L.T. 273 in the case of Eagles Sales Corporation v. C.C.E., 1995 (75) E.L. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y sales is to the tune of Rs. 1,21,08,031.83 and the sale of scrap is Rs. 23,635.50, which is in the lower side as compared to the previous year. Under the heading profit and loss appropriation account, it is shown by net profit transfer from P L A/c Rs. 80,179.73 is shown and income refund is shown as Rs. 5,767/-. The net profit is on the lower side when compared to previous year, which was Rs. 1,82,919.75. As per the impugned order, the duty amount involved is Rs. 37,10,607/- and equal amount of penalty under Section 11AC and penalty of Rs. 10 lakhs on the firm under Rule 173Q(1), which goes to nearly 85 lakhs. As against that under the stay order, the applicant is called upon to make a pre-deposit of Rs. 18 lakhs. As contended by the JDR looking to the above financial background, the applicants are not in such a bad shape to make a pre-deposit to pursue their appeal involving to the tune of Rs. 1 crore, if the redemption fine is also taken into consideration. The financial hardship was not substantiated in the course of the argument on the stay application as observed in paragraph 7 and the order, which is now made out. So for these reasons the stay order does not require to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of the impugned order, it is seen that each and every contention recorded in the order is met with by the adjudicating authority. The impugned order has dealt with in detail about investigation made and the issue of the show cause notice and the reply of the applicant in detail and also recorded the written submission and discussed it under the heading Finding from page 3 to 8. This cannot be said to be a non-speaking order as observed in 1990 (49) E.L.T. 360 in the case of S.K. Nayyar and Ors. v. C.C.E. and 1986 (23) E.L.T. 14 in the case of Rungta Sons Pvt. Ltd. and Anr v. C.C.E. Vishakapatnam Ors. regarding personal hearing and and 1997 (95) E.L.T. 589 Nippon Power v. C.C.E. and 1993 (63) E.L.T. 427 in the case of Advani Orelikon Ltd. v. C.C.E. at page 429 covering 3 rules of principles of natural justice, and 1992 (61) E.L.T. 666 in the case of Hind Tin Industries v. C.C.E. paragraph 19; and 1991 (56) E.L.T. 481 in the case of Shalimar Industries Ltd. v. C.C.E. page 482 at paragraph 5 and 1991 (56) E.L.T. 29 in the case of GTC Industries Ltd. v. U.O.I. regarding the cross examination of the witness and right to read and oral documentary evidence in support of the case. So u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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