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TMI Blog2014 (4) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court. As such, the question which arises is as to whether in such a scenario, any mala fide can be attributed to the assessee and whether the extended period of limitation would be available to the Revenue or not. Similarly, in the case of Jaiprakash Industries Ltd. Vs. CCE, Chandigarh [2002 (11) TMI 92 - SUPREME COURT OF INDIA], it was held that when there are divergent views of various High Courts on a legal issue, the mala fide intention cannot be attributed to the assessee so as to invoke the longer period of limitation. The Hon'ble Supreme Court of in the case of Continental Foundation Joint Venture Vs. CCE, Chandigarh-I [2007 (8) TMI 11 - SUPREME COURT OF INDIA] has held that the expression ‘suppression’ used in proviso to Section 11A of Central Excise Act, 1994 is required to be construed strictly. When there are various circulars operating at different points of time, leading to scope for entertaining the doubt, the extended period of limitation cannot be invoked. Demand confirmed on the basis of use of brand name against various manufacturing units along with imposition of penalties on various persons, on the said ground is set aside on the point of limitat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in manufacture of various types of rubber hoses used as parts of automobiles. M/s. V.K. Industries (proprietor Shri Virendra Arora) were engaged in the manufacture of various types of automobiles rubber, oil seals, etc. This factory was also closed since July, 2000. M/s. Rider Sales (India) (not the appellant in the present set of appeals) was engaged in the trading of Rider brand of rubber auto parts manufactured by the above units. Apart from direct clearance of the products, as original equipments, to various firms/companies, the balance goods were being sold by the said manufacturers, in the market through M/s. Rider Sales (India). 3. The premises of all the above manufacturing units were searched by the officers of DGCEI on 22.08.2000. Further, the officers also searched common residence of the proprietors, Directors of all the units, who were brothers, on 22.08.2000 itself. Various incriminating documents along with computer floppies and a computer was seized from the residential premises. The officers also put to search the residential premises of Shri Om Prakash Gupta, Accountant of the manufacturing units and seized some incriminating documents and floppies. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... units in their statutory records. Accordingly, a view was entertained that they have cleared the excess production clandestinely. 7. On the above basis, proceedings were initiated proposing denial of the benefit of Small Scale Exemption to all the units on the ground that they were using common deceptive brand name Rider as also for confirmation of demand on the allegations of clandestine removal. The appellants challenged the demand proposed to be confirmed on both the counts. However, the pleas advanced by the appellants were not appreciated and found favour with by the adjudicating authority, who confirmed the demands and imposed penalty. Hence, the present appeals. We have heard Shri Naveen Mullick, Ld. Advocate appearing for the appellants and Shri Promod Kumar, Ld. JCDR representing the Revenue. 9. As regards the first issue required to be decided in the present appeals is as to whether when the manufacturing units were using the brand name Rider , Rider Seals and Rider Hose in respect of the goods manufactured by them, the benefit of Small Scale Notification will still be available to them or not. It is seen that the appellants were manufacturing differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ELT 23 (SC)]. It stands held in all the said decisions that use of brand name even on different goods would lead to denial of the exemption benefit. Similarly, degree of resemblance in the brand name is also one of the criteria to be taken into consideration while examining the availability of Small Scale Exemption Notification. As such, by observing so, the Hon'ble Supreme Court reversed the order of the Tribunal and allowed the Revenue s appeal. From the above, it becomes clear that during the period relevant for the purposes of the present appeals, the law was in favour of the assesses and was reversed subsequently by the Hon'ble Supreme Court. As such, the question which arises is as to whether in such a scenario, any mala fide can be attributed to the assessee and whether the extended period of limitation would be available to the Revenue or not. The Hon'ble Supreme Court of in the case of Continental Foundation Joint Venture Vs. CCE, Chandigarh-I [2007 (216) ELT 177 (SC)] has held that the expression suppression used in proviso to Section 11A of Central Excise Act, 1994 is required to be construed strictly. When there are various circulars operating at d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis of clandestine activities, we find that major part of the demand was based upon the print out of the floppies recovered by the Revenue during the search of the residential premises as also from the trading units. The Revenue has also relied upon the statement of various persons recorded during the course of investigations. The appellants have challenged the said confirmation on the ground that the print-outs as contained in the said floppies cannot be considered to be reliable evidences in terms of Section 36A of Central Excise Act, 1944, especially when the same have not been recovered from the place of manufacturer but stands recovered from a common residential premises. Similarly, they have drawn our attention to Annexure D-I of the Show Cause Notice, wherein the demand has been raised and confirmed on the basis of the invoices but no such invoices stand disclosed. The demand against M/s. Jaswant Rubber Industries (P) Ltd. is in respect of Annexure D-3 to Show Cause Notice, which is based on floppies recovered from M/s. Riders Sales (India). It is the contention of the Ld. Advocate that Mr. Vinod Kumar Arora, whose statement was recorded, was never confronted with the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rakesh, employee of M/s. Rider Sales (India). He submits that all the appellants were clearing their goods through the dealer M/s. Riders Sales (India) and when the sales made by M/s. Riders are compared with the manufactured goods of the various manufacturing units, as reflected in their statutory records, it becomes clear that the appellants are indulging in clandestine activities. 13. After appreciating the submissions made by both the parties and after going through the impugned order, we find that the Commissioner has confirmed demand as proposed in the Notice, on the ground of clandestine activities. However, he has not considered and discussed the detailed defence submissions raised by the assesses during the course of adjudication. He simplicitor relied upon the data obtained from the floppies and the various statements recorded during the investigations and has come to a finding that the appellants were indulging in clandestine activities. He has accordingly observed that the collective capacity to manufacture the allegedly clandestinely cleared goods is evident from the evidences on the record and the positive proof of clandestine clearances and the quantum from the fl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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