9911796707
TMI Blog2001 (1) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... h Section 11A of the Central Excise Act, 1944. There is confiscation of seized goods with option to redeem the same on payment of fine of Rs. 25,000/- besides penalty of Rs. 1 lakh under Rule 173Q. The Commissioner agreed with the appellants contention to grant Modvat credit on the inputs used in the manufacture of the final product and gave a direction to the AC to work it out. However before the same could be done, he confirmed the original demand raised in the show cause notice and also without taking into consideration the benefit of Modvat credit that could flow to them and imposed penalty of Rs. 1 lakh. He rejected the plea of the appellants that they were not owners of the brand name CHERRAN as made out. He also rejected the plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emand duty for the past period on the basis of invoice on the ground that they had continued to use the brand name of M/s. Southern Plastics. He submits that the appellants had cleared the goods with brand name CHERAAN which belonged to them and they had declared so to the department. Therefore, the brand name although sounding the same as that of M/s. Southern Plastics, they should be treated as a different brand name and the benefit of SSI Notification should be extended to them. He submits that there was no intention to evade payment of duty as they had informed the department in the declaration about their brand name. He submits that although Bata India case has been applied by the Commissioner, that was a judgment in the context of N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unded the same meaning and it is deceptively used. It is clear that the appellants have used the brand name of another parties and the terms of the Notification, use of brand name of another person disentitles the claim of the benefit of the Notification. He submits that larger period is invokable as admittedly the appellants had used the brand name of another firm i.e., M/s. Southern Plastics and such use had not been brought to the notice of the department. Therefore, the department correctly invoked the provisions of Section 11A and there is no infirmity in the order. He further submits that although the Larger Bench has distinguished the Bata India case, the Supreme Court judgment in the case of Bata India clearly applies to the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the two units in the field of trade, production, sales, profit or loss, whatsoever between them. There was also statement of the appellants partner that the seized goods from the appellants factory used the brand name of M/s. Southern Plastics. Shri P.R. Kuppusamy, partner of M/s. Southern Plastics in his statement, dated 21-7-1995 has clearly admitted to having used the brand name of CHERRAN of M/s. Southern Plastics. This clearly indicates that there is clear violation of the terms of the Notification 1/93, dated 28-2-1993. Hence the Commissioner's finding in this regard to the rejection of the claim of the benefit is justified and the order is required to be upheld. From the appellants premises goods were seized and on which the bra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave to apply the Larger Bench decision in the case of Shri Chakra Tyres. The Larger Bench has distinguished the judgment in the case of Bata India case on the ground that Supreme Court judgment pertains to Notification and not to eligible deduction in arriving at the assessable value under Section 4(4)(i). Therefore, appellants claim for deduction is required to be considered. There is one single flaw in the order inasmuch as the Commissioner while accepting the appellants plea for grant of Modvat credit confirmed duty demand shown in the show cause notice. The AC by letter dated 27-11-1996 verified the documents and noted that they are eligible for the benefit of Modvat credit of Rs. 4,45,928/-. If this be the case, duty in terms of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
