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TMI Blog2019 (4) TMI 891X X X X Extracts X X X X X X X X Extracts X X X X ..... signed by the assignment deed is dated 1/04/2012 on other applicants. No error is committed by the appellant in using the common brand name ‘AKS’ by the other appellants as well. In any case, the AKS is brand fixed were ‘AKS Gold’ and ‘AKS Silver’ appears to be a different brand name than ‘AKS’ - In this case the statement of Shri Bharat Bhushan which was relied upon by the Department have not been examined by the Adjudicating Authority before accepting their statement and also the cross examination of these persons were permitted even after categorical submissions made by the appellants before the Adjudicating Authority. Appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... ect in holding that the SSI exemption was availed by the various appellant in contravention of provisions of Notification No. 8/2003-CE dated 1/03/2003 and further to determine as to whether the appellant, Shri Naveen Jain is liable to penalty under Section 26(2) of the Central Excise Rules, 2002. 4. Learned Advocate on behalf of the appellants submits that during the investigation, the Department seized various reports/ documents and recorded statements of following persons:- (a) Shri Ankur Jain, Proprietor of M/s Akshat Enterprises (Appeal No. E/52216/2018 (b) Shri Inder lal, Supervisor statement dated 18.10.2012 (c) Shri Naveen Jain Statement dated 18.10.2012 & 26.10.2012 5. A lot of issues were raised before the Adjudicating Authority/ Commissioner (Appeal) including seeking cross examination of Shri Naveen Jain, who has retracted his previous to inclupatory part of his statement. The same was not accepted by the Ld. Adjudicating Authority during the adjudication procedure. It was also submitted that the appellants were manufacturing goods under 'AKS' brand which belong to their sister company, namely, Steel Paradise and which was common to all family members. Further, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Naveen Jain, and others as per the provisions of Section 9 D of the Central Excise Act, 1944 (hereinafter refer to as 'Excise Act'). For the better appreciation the provisions of Section 9 D is reproduce as under; [9D. Relevancy of statements under certain circumstances.- (1) A statement made and signed by a person before any Central Excise Officer of a gazetted rank during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains,- (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the Court and the Court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. (2) The provisions of sub-section (1) shall, so far as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... WP No. 12615 of 2016, CWP No. 12616 of 2016, CWP No. 12617 of 2016 and CWP No. 12618 of 2016. "9D. Relevancy of statements under certain circumstances.- (1) A statement made and signed by a person before any Central Excise Officer of a gazetted rank during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains,- (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the Court and the Court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. (2) The provision of sub-section (1) shall, so far as may be, apply in relation to any proceeding under this Act, other than a proceeding before a Court, as they apply in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the adjudicating authority has relied on irrelevant material. Such 9 of 16 CWP No. 12615 of 2016, CWP No. 12616 of 2016, CWP No. 12617 of 2016 and CWP No. 12618 of 2016. reliance would, therefore, be vitiated in law and on facts. 19. Once the ambit of Section 9D (1) is thus recognized and understood, one has to turn to the circumstances referred to in the said sub- section, which are contained in clauses (a) and (b) thereof. 20. Clause (a) of Section 9D (1) refers to the following circumstances : i) when the person who made the statement is dead, ii) when the person who made the statement cannot be found, iii) when the person who made the statement is incapable of giving evidence, iv) when the person who made the statement is kept out of the way by the adverse party, and v) when the presence of the person who made the statement cannot be obtained without unreasonable delay or expense. 21. Once discretion, to be judicially exercised is, thus conferred, by Section 9D, on the adjudicating authority, it is self-evident inference that the decision flowing from the exercise of such discretion, i.e. the order which would be passed, by the adjudicating authority under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on brand name is concerned, it is on record that the same has been assigned by the assignment deed is dated 1/04/2012 on other applicants. It has been held in the case of Kali Aerated Waters Works vs. Commissioner of C. Ex., Madurai. [2015 (320) ELT 692 (SC)] at para 4 and 5 as under; 4. It is clear from the above that the trade name 'Kalimark Aerated Water Works' and trade mark mentioned in the said agreement would remain vested in all the parties including the appellant and the appellant was also allowed to use the same. The agreement further provides that the user of this trade mark, therefore, shall not make any payment of royalty or remuneration to any other party. This very fact was correctly appreciated by the Commissioner who decided the appeal in favour of the appellant. The discussion in the order of the Commissioner, on this aspect, reads as under : "23. During the personal hearing Shri Rathina Asohan drew my attention to the certificates issued by the Trade Mark Registry from the year 1948 to 1985 which were filed before the lower authority. I find the appellant's name also figures in the certificates issued in the year 1962 and 1970 when he became one of the partner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 12-3-1993 and also considering the above contentions, I find that the appellant is the legal owner of the brand names within his marketing area." 5. It is thus manifest that the appellant has been using its own brand name 'Kalimark' and it belongs to the appellant. In view thereof, the case of the appellant is squarely covered in its favour by the judgment of this Court in Civil Appeal No. 9157 of 2003 titled CCE, Hyderabad-IV v. Stangen Immuno Diagnostics decided on 19-3-2015 [2015 (318) E.L.T. 585 (S.C.)]." 13. In view of above, we are of view that no error is committed by the appellant in using the common brand name 'AKS' by the other appellants as well. In any case we also find that the AKS is brand fixed were 'AKS Gold' and 'AKS Silver' appears to be a different brand name than 'AKS'. We also find that the cross examination of the person who statement has been recorded by the Revenue is of mandatory as held in case of Kuber Tobacco & G Tech Industries. 14. In this case the statement of Shri Bharat Bhushan which was relied upon by the Department have not been examined by the Adjudicating Authority before accepting their statement and also the cross examination of these ..... X X X X Extracts X X X X X X X X Extracts X X X X
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