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TMI Blog2002 (4) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... er (Appeals), New Delhi the issue involved is whether the excisable goods manufactured by M/s. Royal Springs are bearing brand name belonging to M/s. Jay Vijay Spares and consequently the goods are ineligible for Small Scale exemption under notification No. 1/93-C.E., dated 28-2-93. 2. Shri Rampal Singh, learned Advocate, submitted that M/s. Royal Springs under the proprietorship of Shri Ramesh Aggarwal, manufacture Spring Leaves; that on 27-5-97 the Central Excise Officers intercepted a tempo loaded with Spring Leaves bearing brand name of Jay Vijay Spares and seized the same; that they also seized Springs from the factory premises of Appellant No. 1 and business premises of Jay Vijay Spares, Appellant No. 3; that Mrs. Krishna Aggarwal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per purchased on 3-10-95 as per vendor s endorsement on reverse thereto and it was attested by the Notary. He relied upon the decision in the case of Zarafshan Chemicals Pvt. Ltd. v. CCE, Chandigarh, 2000 (124) E.L.T. 256 (Tribunal) wherein it was held that where documentary evidence is produced it is impermissible to dismiss its evidencial value on the basis of oral statement to the contrary. It was also held in the same decision that it is for the Department to disprove the claim and to establish that the deed of assignment was executed after the date of seizure and without establishing this assignment deed cannot be brushed aside. 3. Learned Advocate also submitted that the goods seized from the factory are not liable to confiscation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd as such the demand is beyond the period of 6 months. Finally he claimed abatement of duty held to be payable by him from the price of the goods in terms of Larger Bench decision in the case of Srichakra Tyres Ltd. v. CCE, Madras, 1999 (108) E.L.T. 361 (T) = 1999 (32) RLT 1. 4. Countering the arguments Shri R.D. Negi, learned SDR, submitted that the Central Excise Officers after interception of the tempo found the goods belonging to Royal Springs bearing the brand name of another person; that when they visited the factory they found finished goods valued at Rs. 3,06,903/- affixed with the brand name Jay Vijay and Apex; that both the units are separate units and the mere fact that one is owned by husband and the other is owned by wife ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1997 (20) RLT 123. Finally he submitted that the penalty has been imposed on Shri Ramesh Aggarwal not only as Proprietor of Royal Springs but also as Manager of Jay Vijay Spares on account of dealing with the goods which were liable for confiscation. 5. We have considered the submissions of both the sides. It is not in dispute that there are two firms namely Royal Springs and Jay Vijay Spares. First unit is the Proprietorship of Shri Ramesh Aggarwal whereas the second one is owned by Smt. Krishna Aggarwal. Mere fact that the units are separately owned by husband and wife will not make them one unit unless and until one is proved to be dummy unit of the other. No such evidence has been brought on record by either of the Appellants. Accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing but an afterthought. As per para 4 of Notification No. 1/93-C.E. the benefit of the notification is not available, if the excisable goods bear the brand name of another person. As in this case the goods were bearing the brand name of another person the Appellants No. 1 is not eligible for the exemption. Accordingly the benefit of notification No. 1/93 is not available to them. However, the duty demand has to be recomputed in terms of the decision of the Larger Bench of the Tribunal in the case of Srichakra Tyres Ltd. We direct the Adjudicating Authority to recalculate the demand of duty accordingly and intimate the same to Appellants No. 1 who has to honour the same. A penalty is also imposable on M/s. Royal Springs as they have availe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal held therein that penalty under Rule 173Q is not imposable as Clause B of sub-rule (1) provides penalty for not accounting for excisable goods manufactured, produced or stored by any manufacturer. In the present matter the facts are that the Royal Springs had cleared the goods bearing brand name of another person which were intercepted by the officers in a tempo and when they visited the factory premises of Appellants No. 1 the goods were found not entered in RG 1 Register. Both the facts coupled together makes the goods liable for confiscation. Taking into consideration the facts and circumstances of the case we reduce the redemption fine in respect of goods seized from tempo and factory premises of Royal Springs from Rs. 75,000/- t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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