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TMI Blog2013 (9) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... t Techdrive Engineering is the owner - View that TECON that it is not a brand name is not accepted. - assessee is not the owner - Decided against the assessee. Limitation period - Demand is time barred in respect of Sr.No.1 to the Annexure of show-cause notice dated 28/05/2004 - 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 – Held that - Statement was recorded only in the year 2009 and, therefore, it cannot be said that investigation did not complete earlier – As per Hon’ble High Court of Gujarat decision in Neminath[2010 (4) TMI 631 - GUJARAT HIGH COURT] clearly provides that once suppression/misdeclaration is proved, extended period can be invoked. Cum duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant 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 appellant firm has admitted that they have used TECON brand also in addition to their brand. In these circumstances, decision of the lower authority not to allow cross examination cannot be found fault with. 4. The second issue is that TECON brand is only part of the name of the company. However, ongoing through the records, it was found that the name of the company is TECHDRIVE ENGINEERING and the question is whether TECON is a brand name. According to ld. Counsel, this is nothing but name of the Co. and the same cannot be considered as bran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8/05/2004. 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 original adjudicating authority also. The ld. A.R. submits that this issue has been considered and after considering legal decisions, the adjudicating authority has correctly rejected the same and he has drawn my attention to para 22 of the order in original. According to the meaning of relevant date given in Sec.11A of Central Excise Act, 1944 in the case of excisable goods on which duty of excise has not been levied or paid or short levied or short paid, the relevant date would be counted from the date on which a periodical return r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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, 20th July, 2004 has to be taken as relevant date and five years from that date would be 19th July, 2009. Show-cause notice has been issued on 8th July, 2009. Therefore, the show-cause notice has been issued within the extended time allowed under Sec.11A of the Central Excise Act, 1944. 8. The ld. Counsel relied upon the decision of the Hon ble Supreme Court in the case of Orissa Bridge Construction Corpn. Ltd. [2011 (264) E.L.T. 14(S.C.)] to submit that in this case the demand related to the year 2004 whereas show-cause notice has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 Gujarat in the case of Neminath Fabrics Pvt. Ltd. [2010 (256) E.L.T. 369 (Guj.)] rendered the decision after an elaborate discussion of the provisions of Sec. 11A and laying down proposition of law. In these circumstances, I consider that the decision cited by the ld. Counsel cannot be followed. The show-cause notice has been issued in time in any case. At this stage, the ld. A.R. also submitted that statement was recorded only in the year 2009 and, therefore, it cannot be said that investigation did not complete earlier. This was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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