9911796707
TMI Blog2013 (9) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... s were initiated which has culminated in confirmation of duty demand of Rs.1,39,806/- and equal amount of penalty. 2. Heard both sides. For convenience purpose each of the points raised is discussed and given conclusion thereon. 3. The first point raised by learned Counsel was that the Adjudicating Authority did not allow cross examination of Panch witnesses. It was his submission that this should have been allowed since no gear box has been found with brand name. However, after hearing both sides, it was found from the record that the appellant was mentioning the name of the brand in the invoices. Quantum of clearance and value of gear boxes cleared under the brand name of TECON were taken from records. Further, the proprietor of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proprietor that brand name is belonging to other person and was being used by appellant, this claim also cannot be sustained. 6. The next point raised was that the appellant was not paying any money to the owner of the brand name, nor there was any transaction between the proprietor and the owner of brand name. This claim is also rejected in absence of any such requirement in the notification providing SSI exemption 7. The next submission is that demand is time barred in respect of Sr.No.1 to the Annexure of show-cause notice dated 28/05/2004. It is the submission of ld. Counsel that five years have to be counted from this date and show-cause notice was issued on 08/07/2009 which is more than five years. This point was raised before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of periodical return is in Rule 12 of the Central Excise Rules. According to Rule 12, every assessee is required to submit a monthly return and in the case of small scale exempted assessee, the return was filed once in a month. Both sides agree that appellant, being an SSI unit availing SSI exemption, should file the return and the assessee was required to file the quarterly return on 20th July, being the due date, for the quarter ending June. Since every assessee is required to file return and every manufacturer is an assessee, as per rule, appellant was required to file the return and therefore in the absence of any return being filed, the due date on which return was required to be filed has to be taken as relevant date and, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the date of inspection at the factory of the assessee. The Hon'ble Supreme Court has clearly observed that they are not laying down any proposition of law. Therefore, the decision has to be considered as delivered in personam and cannot be applied universally. The decision was rendered in the peculiar facts and circumstances of the case where departmental officers had lost the file and issued show-cause notice after two years due to loss of file. From the observation, it appears that the Hon'ble Court was more concerned about the negligence of the officers and therefore this decision was rendered and this is why they have clearly mentioned that they are not laying down any proposition of law. On the other hand, the Hon'ble High Court of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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