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TMI Blog2015 (11) TMI 1245X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Serbestos Auto International and M/s. Minocha Metals (P) ltd. It is not the department s case against the appellant that the appellant had any agreement with TVS and Rane for manufacture of brake linings as per their standards and specifications and could use their brand name. The appellant were obviously using the brand name TVS and Rane on certain brake linings manufactured by them unauthorisedly and thus, the brake linings with the brand name TVS and Rane cleared by them have to be treated as duplicate brake linings. In view of these circumstances, in our view, there is no justification to value these brake linings at the price at which such brake linings were being sold by the brand name owners. The actual production of RPM has been determined on the basis of three registers recovered from the premises of RPM. The department, however, based on the statement of Shri Pradeep Kumar Goel and his factory Supervisor Shri Satender Kumar has taken the stand that this production has been recorded in the terms of sets, each set being of eight brake linings, while the appellants stand is that the production in these registers is not in sets but the numbers mentioned are the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong with brake linings manufactured by them, from their shop and godown premises. 1.2 The period of dispute in this case is from 1997 -1998 to 1999-2000. These units were visited by the Jurisdictional Central Excise Officers on 17/6/1999. At that time, none of these units RPM and PKE were either having Central Excise Registration or were paying duty. According to the appellants, both the units, at that time, were within full exemption limit of the SSI Exemption notification. In course of search of the factory premises, the officers found that both-RPM and PKE, besides clearing the brakeing linings manufactured by them under their own brand names Raymond, Charlie and Allied, were also using the brand name of other persons, i.e., TVS and Rane. According to the department, the goods affixed with the brand name-TVS and Rane of other persons, were not eligible for SSI exemption. 1.3 At the time of search, while the unit of PKE was found to be working, the factory of RPM was not found to be working. At the time of search in the factory of PKE, the challan books were found regarding dispatch of the goods. In the factory premises of RPM, three registers were found which appeared to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.6 In view of the above investigation, a show cause notice dated 15/12/1999 was issued to RPM, PKE, Shri Pradeep Kumar Goel, Shri Ashok Kumar Goel and Shri Manoj Kumar Goel and Shri Mukesh Kumar Goel for- (a) confiscation of the brake linings seized from various premises; (b) demand of Central Excise duty amounting to ₹ 54,35,941/- from RPM chargeable on the goods valued at ₹ 3,60,88,342/- alleged to have been cleared during period from 1997-1998 to 1999-2000 under proviso to section 11A(1) of Central Excise Act, 1944 along with interest on it under section 11AB and also for imposition of penalty on RPM under section 11AC of Central Excise Act, 1944; and (c) imposition of penalty under Rule, 209A of Central Excise Act, 1944 on Shri Pradeep Kumar Goel, proprietor of RPM and Shri Ashok Kumar Goel and Shri Manoj Kumar Goel, partners of PKE. 1.7 The above show cause notice was adjudicated by the Commissioner vide order-in-original dated 19/2/2000 by which the entire duty demand as mentioned above was confirmed against RPM along with interest on it under section 11AB and besides this, penalty of equal amount was imposed on RPM under section 11AC. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this order, since he has expired, the same has been dismissed, as abetted, in terms of the Rule 22 of the CESTAT Rules by a separate order. 2. Heard both the sides. 3. Shri A.K. Jain, Advocate, ld. Counsel for the appellants, pleaded that while the Commissioner in the earlier order-in-original passed in the year 2000 had treated all the clearances made by RPM and PKE as of branded goods, in the de-novo proceedings, the Commissioner in terms of the directions in the CESTATs remand order has quantified the value of the clearances of the brake linings in respect of which the brand name TVS and Rane had been used and has demanded duty only in respect of that quantity of brake linings; that still the Commissioner in respect of the branded goods has adopted the value of the goods on the basis of price list of the brand name owners- TVS and Rane after giving 40 per cent discount; that in respect of the goods of other brands instead of adopting the appellants invoice price, the price ascertained on the basis of the quotations given by the three dealers M/s. Masu International, M/s. Serbestos Auto International and M/s. Minocha Metals (P) ltd. have been adopted for which there is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmined on the basis of three registers recovered from the premises of RPM, there is absolutely no justification for treating the figures of the production to be the production in terms of the sets of brake linings. He pleaded that if the value of the goods as mentioned in the invoice is accepted and the production of brake linings as recorded in the three registers seized from RPM is treated as the production of brake linings not of sets of brake linings, the duty demand would be very small. 4. Shri Yashpal Sharma, ld. DR, defended the impugned order by reiterating the findings of the Commissioner. With regard to the quantum of clearances, he stated that the figures of production as recorded in the three registers recovered from the premises of RPM are the figures of production in terms of the sets, each set being of eight brake linings. He in this regard pointed out to the statement of Shri Pradeep Kumar Goel, proprietor of RPM and Shri Satender Kumar, Supervisor discussed in para 40 of the impugned order wherein it has been stated by them that the quantity of the goods had been recorded in the registers in sets. With regard to the valuation of the goods, he stated that value o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the brand name TVS and Rane or sold under other brand names or sold without any brand has not been determined on the basis of the price declared in the invoices. In this regard, the Commissioner in respect of the brake linings bearing brand name TVS and Rane has adopted the price at which the brand name owners were selling the same goods and the value of the goods of other brand or unbranded goods has been determined on the basis of the quotations given by the three traders M/s. Masu International, M/s. Serbestos Auto International and M/s. Minocha Metals (P) ltd. 7.2 In the present case, it is not the departments case against the appellant that the appellant had any agreement with TVS and Rane for manufacture of brake linings as per their standards and specifications and could use their brand name. The appellant were obviously using the brand name TVS and Rane on certain brake linings manufactured by them unauthorisedly and thus, the brake linings with the brand name TVS and Rane cleared by them have to be treated as duplicate brake linings. In view of these circumstances, in our view, there is no justification to value these brake linings at the price at which such brake ..... X X X X Extracts X X X X X X X X Extracts X X X X
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