9911796707
TMI Blog2011 (8) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... orted jams, pickles, squashes, cooking sauces, chutneys, syrups, synthetic vinegars etc. The company is also trading in sugar, salt and pepper by packing into small packs. The respondent No. 2, Shri Yunus A. Kalvert is the Managing Director of the Company. 4. On 22.11.2000, on receiving information that respondents were indulging in clandestine removals of its finished P & P food products without payment of Central Excise Duty, the revenue authorities searched the factory premises of the respondent no. 1. Searches were also carried out at the premises of its distributors/wholesale dealers/traders of respondent no. 1 situated in and around Mumbai and other connected premises. 5. During the search conducted at the premises of the respondent no. 1 several incriminating documents, articles and records were found. A huge quantity of finished goods were also found lying in the factory premises. Further, it was also noticed that there was one tempo parked inside the factory premises loaded with cartons containing the excisable goods manufactured by the said company and was about to leave the factory premises. On inquiry from the driver of the said tempo it was foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as non-excisable goods with an intent to evade payment of excise duty. Consequently, the Commissioner confirmed the duty demand and ordered confiscation of the seized goods and also imposed penalty equivalent to the amount of duty on the company and also directed to pay interest on the excise duty etc. 11. Being aggrieved by the aforesaid order, respondents filed appeals before the CEGAT. The said appeals were heard and Tribunal passed the judgment and order on 02.08.2002, which is impugned herein. The Tribunal by its order set aside the findings of the Commissioner of Central Excise, Mumbai holding that the respondents were not guilty of clandestine removal of excisable goods and also that the goods of respondent no. 1 were not excisable inasmuch as they were allegedly not packed in containers under a brand name and therefore not required to pay any excise duty. 12. The present appeals are directed and preferred against the said judgment and order on which we heard learned counsel appearing for the parties. 13. The learned counsel appearing for the parties have painstakingly and extensively taken us through the relevant documents on record to which referenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (incorporating rates of Central Excise & Service Tax as in operation on 2nd June, 1998) relates to "Miscellaneous Edible Preparations". It also prescribes 8% excise duty for the goods mentioned under sub heading 2103.10. Description of goods mentioned in sub-heading 2001.10 is as under: "Sauces, ketchup and the like and preparations therefore; fixed condiments and mixed seasonings; mustard flour and mead and prepared mustard put up in unit containers and bearing a brand name" Sub-heading 2108.20 prescribes 18% excise duty for "Edible preparations, not elsewhere specified or including Sharbat" under Chapter 21. Sub-heading 2203.00 also prescribes 18% excise duty for "Vinegar and substitutes for vinegar obtained from acetic acid" under Chapter 22. 17. During the search operation carried out by the appellants several incriminating articles were found with brand name "Kalvert Anchor" or "Kalvert" in assorted forms which were manufactured by M/s. Kalvert Foods (I) P. Ltd. During the course of investigation statement of Shri Yunus A. Kalvert, Managing Director of respondent company was recorded under Section 14 of the Central Excise Act, 1944, who inter alia deposed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ietor of RTC was also recorded under Section 14 of the Central Excise Act, 1944 along with Shri Shekhar Mogaviera - Production Supervisor of M/s. Kalvert Foods India Pvt. Ltd. Statements of various other persons were also recorded under Section 14 of the Central Excise Act. 21. Our attention was also drawn by the counsel appearing for the appellant to the findings recorded by the adjudicating authority to the fact that there have been recovery of unaccounted finished excisable goods from 8 different dealers in and around Mumbai and that there have been creation of firms dealing in similar products from the same premises by the same persons having no capital or machinery and also that there have been only one tempo invariably used for delivery of excisable goods from factory to the buyers though some invoices were issued by the firms other than M/s. Kalvert Foods India Pvt. Ltd. and that there have been use of parallel sets of invoices of the same serial numbers supported by recovery of a serially numbering machine and blank invoices without any printed serial numbers. 22. On the basis of the aforesaid material discussed hereinbefore the adjudicating authority came t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o evade excise duty. It is proved from the fact that the Managing Director voluntarily came forward to sort out the issue and to pay the Excise duty and paid Excise duty to the extent of Rs. 11,00,000/- on different dates. The aforesaid act of the respondent no. 1 was very material and relevant but the same was also ignored by the Tribunal while arriving at a wrong conclusion. 26. Therefore, according to us the issue with regard to the clandestine removal of excisable goods as non-excisable goods by the respondent from their premises and selling to its dealers and distributors is clearly proved from the materials on record. 27. In view of the aforesaid position and since there was clandestine removal of excisable goods, the period of limitation in the present case would have to be computed from the date of their knowledge, arrived at upon raids on the premises. In the present case therefore the extended period of limitation would be available as there was suppression of facts by the respondents with the intention to evade the central excise duty inasmuch as they did not account for the manufactured goods in the prescribed record. 28. The Tribunal has also re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct mark/Brand name" has been brought out. It was stated therein by this Court that "House mark" which is usually a device in the form of an emblem, word or both is an identification of the manufacturer which is compulsory under the Drug Rules. On the other hand, product mark or brand name is invariably a word or a combination of a word and letter or numeral by which the product is identified and asked for. In paragraph 6 of the said Judgment, Narayanan's Book on Trade Marks and Passing-Off was also referred to and since the same may have a bearing to the facts of the present case, it is extracted herein below: "677A. House mark and Product mark (or Brand name). In the pharmaceutical business a distinction is made between a House mark and a Product mark. The former is used on all the products of the manufacturer. It is usually a device in the form of an emblem, word or both. For each product a separate mark known as a product mark or a brand name is used which is invariably a word or a combination of a word and letter or numeral by which the product is identified and asked for. In respect of all products both the Product mark and House mark will appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redominant in the pharmaceutical trade. Though both are trade marks and are registrable as such, each has its own distinct function. While the House mark represents the image of the enterprise from which the goods emanate, the Product mark is the means by which goods are identified and purchased in the market place and it the focal point of presentation and advertisement." 37. In view of above discussion, it is clear that what was being used by the respondent under the expression "Kalvert" was a "Brand name" and not a "House mark" as sought to be alleged by the respondent and has been wrongly accepted by the Tribunal. Therefore, the articles of assorted jams, pickles, squashes, cooking sauces, chutneys, syrups, synthetic vinegars etc. manufactured and sold by the respondent company under a brand name "Kalvert" were liable to be charged for excise duty at the rate prescribed in the Excise Law. 38. The Tribunal committed manifest error in coming to its conclusion and therefore the order passed by the Tribunal is set aside and the order dated 27.02.2002 passed by the Commissioner of Central Excise, Mumbai is restored. 39. The appeals are allowed to the aforesaid exten ..... X X X X Extracts X X X X X X X X Extracts X X X X
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