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TMI Blog2017 (5) TMI 803X X X X Extracts X X X X X X X X Extracts X X X X ..... when equal penalty amounting to ₹ 78,76,135/- has been imposed, the penalty under Section 173Q is not warranted and is therefore set aside. Penalty on Sh. V. Siva Prasad Managing Director of MBL - Held that: - he was the kingpin of the entire exercise of the aviation and cannot observes responsibilities. He cannot therefore claim to have in appeal with clean hands. It is also observed that the penalty that considering the quantum of duty aviation and has also his entire role in the matter, penalty of ₹ 5,000/- imposed on him u/r 209 CER is not only justified but also proportionate to the Acts an omission - penalty upheld. Appeal dismissed - decided partly in favor of appellant as regards equal penalty. - Appeal No. E/72 & 73/2007 - - - Dated:- 21-2-2017 - Satish Chandra, President And Madhu Mohan Damodhar, Member ( Technical ) Sh. V. J. Sankaram, Advocate for the Appellant Sh. Nagraj Naik, Deputy Commissioner (AR) for the Respondent ORDER [ Order Per : Mr. Madhu Mohan Damodhar ] Both the appeals since emanating the same impugned order, they are taken up for common disposal. 2. Facts of the case are that main appellant, M/s. Matrix Biosc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-heading No. 3808.90 of the Central Excise Tariff Act, 1985 are to be valued as per Section 4A of the Central Excise Act, 1944 in terms of notification numbers 9/2000 C.Ex (NT.) dated 01.03.2000, 5/2001 C.Ex. (NT.) dated 01.03.2001 and 13/2002 C. Ex. Dated 01.03.2002 for determining the assessable value and duty liability. 4. Accordingly, a Show Cause Notice dated 28.02.2006 was issued to MBL inter alia proposing demand of ₹ 78,76,135/- Central Excise duty, ₹ 34,746/- Education Cess, interest there on, penalty under Section 11AC of the Act and penalty under Rule 173 Q of Central Excise Rules, 1944/Rule 25 of the Central Excise Rules. The Show Cause Notice also proposed imposition of penalty under Rule 209A of the Central Excise Rules, 1944/Rule 26 of Central Excise Rules, on Sh. V. Shiva Prasad Managing Director of MBL. In adjudication original authority vide impugned order dated 30.10.2006, has: i) Ordered the classification of products Dart, Dazzler and Propel under Chapter Sub-heading No. 3808.10; Alert Stayphor, Rapid-oxy, Commander/Commander Special and Bindex Gel under Chapter Sub-heading No. 3808.90 and Sulphaprim under Chapter Sub-heading No. 3003.20 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature or invented word or writing, which is used in relation to such specified goods for the purpose of indicating, or so to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person. In the instant case, there is sufficient evidence to establish that MBL were using the Brand name/Trade mark of another person (MVF) on their products and hence they will become ineligible for benefit of SSI exemption under the relevant notifications. 10. From a perusal of the impugned order it is seen that the adjudication authority has carefully analyzed the issue of MBL using logo/trade mark on MVF in para 34 35 of the impugned order is reproduced as under: 34. M/s MBL was incorporated in the year 1998-99. They are using, the logo/trade mark M within a square and word Matrix inscribed below the letter within the square (Annexure C. 12 to the show cause notice) on their products. Sh. V. Siva Prasad, Managing Director of M/s MBL in his statement dated 31.01.2005 and Sh. P. Bala Murali Krishna, incharge Banking and legal affairs of M/s MBL also Managing partner of MVF in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... granting them the benefit of small scale exemption in respect of the dutiable goods. In their further submissions dated 14.08.2006, the noticee company has stated that when the statements were being recorded it was brought to the notice of the investigating authorities about the brand name being used by both parties; that the memorandum of undertaking was essentially and primarily made between the noticee company and Matrix Vet formulations with the principal objective to Matrix Vet Formulations by offering the wider marketing network of the noticee company because of the fact that in the small segment of their marketing network the goods should not be sold extensively; that it was not a case of Matrix Vet Formulations permitting usage of its logo etc. by Matrix Vet Pharma Pvt. Ltd., (later changed as M/s MBL) but indeed a case of MVF surrendering its exclusive right of ownership of the marks in consideration of the wider marketing network offered by MVPL/M/s MBL; that the Memorandum of undertaking clearly gave ownership to MVF and MVPPL (now M/s MBL); that having regard to the facts and circumstances of joint ownership of the brand, the notice company is entitled to the benefit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the visit of officers. In this regard it cannot be disputed that the issue in question is complex involving larger number of branded Aqua Shield Substances/fungicides used in Aqua culture. In scenario were MBL on neither obtained Central Excise registration nor informed department about the true nature of the goods manufactured by them. It would defiantly take considerable investigation to unreal the truth. Has observed by the adjudicating authority in para 42 of the impugned order even after the said investigations commands, the MBL maintained that they are manufacturing feed supplements only even though they very well knew the chemical composition of the products and they are ultimately use also. When the assessee resorts to such stonewalling of investigation, it is but consequently that the investigations will get prolonged. The factum of the larger investigations involved is evident from the fact that the Show Cause Notice and it is annexure run into more than 20 pages. In any case, the Show Cause Notice has been issued proposing the demand of Central Excise duty in terms of Section 11A (1) of the Central Excise Act, 1944 read with the provision thereto, which provide for high ..... X X X X Extracts X X X X X X X X Extracts X X X X
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