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TMI Blog2010 (12) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... res re-determining the quantum of demand from 2003 till the date when the goods were affixed with the brand name – Matter remanded to Adjudicating Authority for deciding the quantum of penalty on these appellants – Appeal disposed off - E/483 & 806; 421-423; 754-756/07 - 1520-1527/2010 - Dated:- 10-12-2010 - Mr. M.V.Ravindran, Mr. P.Karthikeyan Mr. K.S. Ravishankar Mr. R. Dakshinamurthy, Advocates for the appellants Mr. M.M. Ravi Rajendran, JDR for the Revenue. Per M.V.Ravindran By this common order, we propose to dispose of the following appeals. Sl.No. Appeal No. Assessee name 1 E/483/07 M/s. Sunfab 2 E/806/07 M/s. Alba Equipments 3 E/421/07 Sh. N. Shivakumar, Partner of M/s. Sunrise Services 4 E/422/07 Sh. K.M. Akhilan, Partner of M/s. Sunrise Services 5 E/423/07 Sh. R. Bhaskar, Partner of M/s. Sunrise Ironing Equipments 6 E/754/07 Sh. R. Bhaskar, Partner of M/s. Sunrise Services 7 E/755/07 Sh. N. Shivakumar, Partner of M/s. Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1/4/2001 to 31/3/2005. Coming to such conclusion, she passed the following orders:- Aggrieved of such an order, the above mentioned appellants are before us. 3.Ld. Counsel appearing on behalf of the appellant in appeal No.E/483/07 would submit as under:- a. The word Sunrise used by the appellants during the period in dispute was not a brand name but was denoting the indication of rising of the Sun and it is universally acknowledged to denote the rising Sun in the ease. It is the submission that using of the word and symbol which is universal and does not belong to any person, the appellant could use the same on any goods or substances and hence, it is denied that the same is brand name of any particular person. It is the submission that the word Sunrise is used by many persons on several goods and services, including items like paint brushes, coffee powder, spices powder, condiments, solar water heater, hose pipes, etc. Hence, the same is nobodys name or brand to disqualify the appellant from availing SSI exemption. For this proposition, he brought to our notice page 121 to 125 of the appeal memorandum wherein they had annexed the photocopies of the use of word Sunrise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to appellants on 19/1/2006 and 7/11/2005 alleging suppression of facts with intent to evade duty and demanded duty for extended period which is incorrect as the Department was aware of the activity of appellant from 19/4/2004 itself. It is the submission that the appellant had dis-continued using the word sunrise after the search by Department on 19/4/2004 and hence, any demand subsequent to April, 2004 to March, 2005 is untenable in law and is entirely on conjectures and surmises. 4.1.Ld. DR on the other hand would draw our attention to the statements recorded of the partner of the appellant firm and submit that the partner has clearly admitted that they were using sunrise brand on the products manufactured by them. It is the submission that such statements were not retracted by the said partner. It is his submission that the Supervisor of M/s. Sunrise Services (the firm which is using the brand name Sunrise) has given statement that they were manufacturing and clearing the goods to the local market as well as to export and was in establishment from 1999 to 2000 and that they were using the brand name since the time of inception. It is the submission that Shri R. Baskar, Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber, 2000 to March, 2005. It is undisputed that M/s. Sunfab and M/s. Alba Equipments were engaging in the manufacture of excisable goods i.e. Garment Finishing Equipments. The main stand of the ld. Counsel for the appellants M/s. Sunfab and M/s. Alba Equipments is on that ground that Sunrise is not brand name but in the nature of house mark and is indicative of industrial activity. We are unable to accept this proposition of the ld. Counsel. It is on record that the partners of the firms had categorically admitted in their statements on the day of the visit that the appellants used the Sunrise as the brand, which belongs to M/s. Sunrise Services. The said statements were never retracted by the partners of the firms. 6.Be that as it may, we find from the records that there is no dispute as regards the Trademark Authority application No.1229220 for class 7 and application No.1229221 for class 11 for the identical products filed by M/s. Sunrise Services. M/s. Sunrise Services had sought the registration of brand name Sunrise for identical / similar goods manufactured and cleared by them. The above said applications were filed by M/s. Sunrise Services with the Trademark Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their products, then the Adjudicating Authority, after examining the said claim, could come to a conclusion as to the period for which the appellants were using the said brand name, but definitely post 9/9/2003. Since the penalties imposed on the appellants are consequent to the duty liability, the Adjudicating Authority will also decide upon the penalties sought to be imposed upon the appellants. 8.The following appeals were also filed. Sl.No. Appeal No. Assessee name 1 E/421/07 Sh. N. Shivakumar, Partner of M/s. Sunrise Services 2 E/422/07 Sh. K.M. Akhilan, Partner of M/s. Sunrise Services 3 E/423/07 Sh. R. Bhaskar, Partner of M/s. Sunrise Ironing Equipments 4 E/754/07 Sh. R. Bhaskar, Partner of M/s. Sunrise Services 5 E/755/07 Sh. N. Shivakumar, Partner of M/s. Sunrise Services 6 E/756/07 Sh. K.M. Akhilan, Partner of M/s. Sunrise Ironing Equipments As regards these appeals, we find that these appeals are filed against the imposition of the penalties by the Adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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