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TMI Blog2011 (5) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... mption, also hold that invocation of extended period of limitation is justified - mandatory penalty u/s 11AC is warranted in the present case - Decided against the assessee. - 2298, 2266, 1304, 1143 of 2005 - - - Dated:- 12-5-2011 - Shri Justice R.M.S. Khandeparkar, Shri M. Veeraiyan, JJ. For Appellant: Sh. G.K. Sarkar, Advocate. For Respondent: Ms. Monika Batra, SDR Per: Shri M. Veeraiyan: 1.1 Appeal No. E/2298/2005 is by M/s Karam Industries against order of the Commissioner (Appeals) No. 125/CE/JAL/2005 dated 31.3.2005 which has arisen out of order of the original authority No. 27 28/CE/ADC/2003 dated 29.10.2003. Appeal No. E/2266/2005 is by the department against the same impugned order seeking enhancement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere using the brand name KARAM belonging to M/s Guru Nanak Engineering Works and, therefore, they were not eligible for the small scale exemption. Accordingly, show cause notice dated 27.3.2002 was issued proposing demand of duty of Rs. 17,75,977/- from M/s Karam Machine Tools and proposing imposition of penalties. The demand of duty related to the period from March 1997 to 07.12.2001. Similarly, by show cause notice dated 01.08.2002, duty demand of Rs. 7,17,163/- from M/s Karam Industries and imposition of penalties were also proposed. The original authority vide order dated 29.10.2003 dropped the proceedings holding that the brand names used by these two parties are different from the brand name KARAM . On appeal, filed by the department, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cancellation of registration, they were not required to file any declaration. In view of the above, the allegation of suppression of relevant information is incorrect and even if demand of invocation of extended period of limitation is not justified and penalties should not be imposed. He relies on the decision of the Tribunal in the case of Bentex Motor Control Industries vs. CCE, New Delhi reported in 2002 (139) ELT 679 and submits that the decision has not been interfered by the Hon ble Supreme Court as the appeal filed by the department stands dismissed as time barred. 3.3 Learned Advocate also submits that M/s Karam Machine Tools claimed before the lower authorities that clearances amounting to Rs.2,45,193/- related to spares part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ible for exemption. She also took us through the enquiries conducted with the purchaser of tools manufactured by M/s Karam Industries wherein they have clearly stated that they have purchased these machines with a clear understanding that they were of the brand name KARAM which is a popular brand name. She also submits that the exemption is not available when third party brand name is used even if the said brand name was not registered. She submits that as the relevant information about use of the brand name of third party which was of the erstwhile family concern was not revealed, extended period of limitation has been rightly invoked. She also submits that Commissioner (Appeals) erred in not imposing penalties equal to duty involved in te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation conducted by the department with the buyers of tools manufactured by M/s Karam Industries has clearly brought out that the trade understood these brand names used by the appellant parties as only KARAM. Further, the appellant parties were clearly having knowledge that the brand name belonged to M/s Guru Nanak Engineering Works manufacturing identical products as the said firm was also a family concern and the Partners of appellant firms have entered into a partnership dissolution deed. Under these circumstances, the appellant firms were duty bound to reveal the use of the brand name. In the case of Premier Polymers relied by the appellant, the Tribunal appreciated the fact that the learned Commissioner did not rely on any evidence to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rk should be excluded while confirming the demand of duty. 7. We also find that the submission of the appellant parties before the original authority for cum-duty benefit has not been considered by the original authority as well as by the Commissioner (Appeals). Therefore, the matter requires to be sent to the original authority for fresh calculation. 8. While upholding penalty under Section 11AC, we hold that the same depends upon the actual duty to be demanded which can be confirmed only after the fresh calculation as directed above. Therefore, we also direct the quantification of penalty under Section 11AC after re-quantification of duty as mentioned above. 9. Regarding the submission that the order of the Commissioner (Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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