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TMI Blog2018 (9) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2. The appellant, M/s. Esquire Electrovision Pvt. Ltd., is engaged in the manufacture of DVD and other electronic items falling under CTH 8404 and 8521 of CTH using 'BESTON-S' brand. Acting on intelligence, Revenue conducted search on 20.08.2011 at the three premises as follows:- (i) M/s. Esquire Electrovision Pvt. Ltd., (ii) M/s. Beston Eletrovision Pvt. Ltd.; (iii) and M/s. Beston Sky Vision Pvt. Ltd.; belonging to brothers and close relatives of the appellant, Balram Nathani (mentioned in the show cause notice). During the course of search in the premises of the appellant, its Director, Shri Balram Nathani, informed that they have stopped their manufacturing activities since June 2011. Further, before May 2011 they were engaged in ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being asked, he stated that they have chosen 'BESTON-S' in resemblance of brand 'BESTON' to capture the market of 'BESTON' brand; that M/s BDP Radio Corporation opposed the application of registration of brand name 'BESTON-S' before the Trademark Registry. 4. On scrutiny of manufacturing retail sale invoice book for the financial year 2010-11 (serial no. 9 to Panchanama drawn in the factory at W-17 Okhla Indl. Area, New Delhi-20), it appeared that the logo of brand 'BESTON-S' was printed on each of the sale invoices issued by the appellants, which was having the same type and style of logo brand "BESTON". The MRP of the goods DVD/VCD falling under Central Excise Tariff Heading 8521 was not declared by the appellants on sales invoices whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailendra Aggarwal, who in his statement under Section 14 had stated that they were supplying cartons to the appellants with the designs as per various models being printed on those cartons. 8. On perusal of the examination report number TMR/MUMBAI/EXM/2012 dated 27/06/2011 issued by the Registrar of Trademarks, Mumbai, with reference to the appellant's application number 2034850 in class 9 (Stereo, deck tape recorder, two-in-one and other electronic items) retrieved from the site of trademark authority, it was observed by the Revenue that, the said application of the appellant was refused by the Trademarks authority under Section 12 of the Trademark Act, 1999 on the ground that same/similar trademarks is/are already on record of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant was required to disclose the MRP and pay duty under Section 4A of the Act, which they have failed to do. Accordingly, the Authority verified the MRP of similar products from the market and adopted the retail sale price of branded goods like Philips, Samsung etc. for the purpose of valuation and adopted the highest MRP of Rs. 3790/-. 10. Accordingly, vide show cause notice dated 09/07/2012 relating to the period April 2007 to June 2011 (invoking the extended of limitation), it was proposed to demand Central excise duty of Rs. 51,73,623/- involved on the goods cleared by the appellant during the relevant period with further proposal to classify the goods, namely, DVD/VCD under Central Excise Tariff Heading 8521 and other items like C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny other person. Further, he also relied on the ruling of this Tribunal in the case of Sanjay Aggarwal CCE versus Sanjay Aggarwal 2017 (345) ELT 568, wherein it was held that, benefit of exemption is not to be denied if the brand name as registered in the name of Managing Director, who was earlier using the same for the goods manufactured by him as proprietor of the firm, and hence the demand was held as not sustainable and SSI exemption was available. 14. The learned counsel, to substantiate his submissions, also produced packing material of the goods manufactured by the appellants indicating brand name 'BESTON-S'. He further brought to our notice the fact that the sample of goods in question were also shown to the adjudicating authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arket. 18. The ld. AR for Revenue has relied on the findings in the impugned order. He has further drawn our attention to the statement recorded during the course of search on investigation of Shri Balram Nathani, wherein he stated that he was using the brand name "BESTON-S" and was aware that the brand name "BESTON" belongs to his brother, Shri P.D Nathani. The learned AR further said that in this view of the matter, the appellant was consciously using the brand name of his brother and accordingly is not entitled to the SSI exemption as rightly held by the adjudicating authority. As regards valuation is concerned, he submitted that the goods of the appellant are similar to international brand and as such the MRP found on the website and a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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