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TMI Blog2023 (5) TMI 757X X X X Extracts X X X X X X X X Extracts X X X X ..... als) has been accepted by the Revenue and no further appeals have been filed. Appeal allowed. - Excise Appeal No. 1770 of 2012 Excise Appeal No. 1771 of 2012 Excise Appeal No. 1772 of 2012 , Excise Appeal No. 86585 of 2015 , Excise Appeal No. 86840 of 2015 - FINAL ORDER NO. A/85329-85333/2023 - Dated:- 23-2-2023 - HON BLE MR. SANJIV SRIVASTAVA , MEMBER ( TECHNICAL ) And HON BLE DR. SUVENDU KUMAR PATI , MEMBER ( JUDICIAL ) Ms. Lalita Phadke , Advocate , for the Appellant Shri P. K. Acharya , Superintendent , Authorised Representative for the Respondent ORDER PER : SANJIV SRIVASTAVA These appeals are directed against Orders-in-Appeal No. US/532 to 534/M-II/2012 dated 31.08.2012, No. CD/306 to 308/M-II/15 dated 12.02.2015 and No. 385 to 387/M-II/2015 dated 04.05.2015 passed by the Commissioner of Central Excise (Appeals), Mumbai-II. By the impugned orders, Commissioner (Appeals) has upheld the Orders-in-Original No. ADJ/JSC/26/11- 12 dated 09.11.2011, No. 14/RD/ADDL/M-II/2013-14 dated 28.06.2013 and No. RC/Adj./116/Powai/Saniya/13 dated 04.02.2014 holding as follows:- Order-in-Original No. ADJ/JSC/26/11-12 dated 09.11.2011 ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd nine hundred and twenty only) under provisions of Section 11A(1) of Central Excise Act, 1944, and order the same to be paid forthwith by M/s. Saniya Bakers. ii) I order that the applicable interest under the provisions of Section 11AB/11AA of the Central Excise Act, 1944 be charged and recovered from M/s. Saniya Bakers. iii) I impose a penalty of Rs 2071920/-(Rs. Twenty lakhs seventy one thousand nine hundred and twenty only) on M/s. Saniya Bakers Mumbai-72, under Rule 25 of Central Excise Rules, 2002. iv) I hereby impose a penalty of Rs 250000/- (Rs. Two lakhs fifty thousand only) on Shri Aman Ansari and Rs 250000/- (Rs Two lakhs fifty thousand only) on Smt. Sabina Javed Alam Ansari, both partners of M/s Saniya Bakers under Rule 26 of Central Excise Rules, 2002. 2.1 Appellant is manufacturer and clearing excisable goods, viz. biscuits and cookies falling under Chapter Heading 19059020 of the First Schedule to the Central Excise Tariff Act and under trade mark of Kwality along with logo. They are availing the benefit of exemption under Notification No. 8/2003- CE dated 01.03.2003 as amended, from 2003 onwards. 2.2 Shri Aman Ansari and Smt. Sabina Jav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als). Hence these appeals. 3.1 We have heard Ms. Lalita Phadke, Advocate for the appellants and Shri P.K. Acharya, Superintendent, Authorised Representative for the Revenue. 3.2 Arguing for the appellants, learned counsel submits that The issue involved in the present appeals is denial of small scale exemption under Notification No.8/2003-CE dated 01.03.2003 as amended, for the period from September 2003 to August 2013 on the ground that the goods manufactured by the appellant under the brand name of Kwality which does not belong to them could not be entitled for the exemption under the said notification. The above order has been passed ignoring the fact of permanent assignment of brand name Kwality in favour of the appellant from 2003 onwards. Taking note of the above, Commissioner (Appeals) has himself for the period from September 2003 onwards allowed the appeal in favour of the appellant. The issue is squarely covered in their favour by the said order of the Commissioner (Appeals) and the Tribunal judgment in the case of Zarafshan Chemicals Pvt. Ltd. [200 (124) ELT 256]. Accordingly appeals may be allowed. 3.3 Learned AR arguing for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of liquid gold has been dealt with in - detail in the Allahabad High Court judgment in Rattan Lal Garg case and it has been explained that liquid gold was not gold since after its manufacture it has become a compound of gold and not an alloy of gold. Chapter 71 which includes precious metals and articles thereof would cover goods which have metallic content. Liquid gold having lost its metallic content in any identifiable form because of its chemical constitution would be more appropriately classifiable under Chapter 32 covering dyes, colours, paints, etc., forming part of Section VI of the Central Excise Tariff Act consisting products of chemical or allied industries. [paras 12, 13] SSI exemption - Brand name Evidence, documentary evidence Assignment dead transferring brand name to the assessee not to be brushed aside unless the department disproves the claim and establishes that the assignment deed though dated 3-4-1993 was in fact executed after the date of seizure Assessee claim to ownership of brand name Golden Oriole' having been established on the basis of assignment deed, benefit of Notification 1/93-C.E. and consequential benefit subject to other conditions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re close relations, the possibility of the said document having been created as an afterthought could not be dismissed. We find that the observations made in the impugned order are based merely on suspicion and speculation and not on the basis of any evidence, it is well settled that where documentary evidence is produced, it is impermissible to dismiss its evidentiary value on the basis of oral statement to be contrary. The appellant's submission is that the Commissioner (Appeals) has rejected the deed of assignment without any basis or evidence. We find force in this argument. We feel that it was for the Department to disprove the claim and to establish that the deed of assignment, though dated 3-4-1993 was in fact executed after the date of seizure. Without establishing this, the assignment deed cannot be brushed aside. In the above set of facts, the impugned order cannot sustain and has to be set aside. We therefore hold that appellants' claim to be owners of the brand name Golden Oriole on the date of visit of the officers to the appellant's factory on 10-8-1994 is established on the basis of the assignment deed and accordingly, they were entitled to the benefit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... servedly followed by subordinate authorities unless operation of the same has been stayed by competent court. Since, a higher forum of authority has already decided the issue, the matter gets settled over there, unless the same is set aside by the higher court. They also inter alia, relied upon the following case law in support of their claim.: Commissioner of Central Excise, Goa Vs. Primella Sanitary Products(2005(184)B.LT:125(5.0) wherein it was held that SSI Exemption-Brand/Trade mark - Assignment of trade mark Comfit Always for a consideration of Rs.100/- whether d bonafide assignment Tribunal had held that so long as assignment stands, assessee is entitled to benefit of Notification Nos 175/86-CE. and 1/93-C.E Tribunal - Tribunal's Order upheld. 9. Even though the facts and circumstances are similar right from first Adjudication Order, the department in the last so many years should have carried out a detailed investigation as to whether the Assignment Deed was properly executed, whether the witnesses were properly signed, whether the notarization was done properly. They should have approached the Trade Mark Authorities to know whether the said Assignm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic philosophy of Tax Administration. Apart from consistency; uniformity, certainty is also an essential element of Tax Administration. The reversing of my earlier decision is also in line with the Board's Instructions issued under F.No. 1080/09/DLA/MISC/15/751, as part of Action Plan to Reduce Litigations in the Department. In view of above, I choose to reverse my earlier two decisions based on the judgement of Hon'ble Tribunal in the case of ZARAFSHAN CHEMICALS PVT LTD(supra). Accordingly, it is to be correctly held that the said assignment deed was in existence and benefit of SSI exemption is to be extended to the appellant. 12. With regard to the penalty on the partners, the matter is well settled that the partnership firm and the partners are one and the same in the eyes of law and the partners cannot be separated from the partnership firm and vice versa. The following case laws produced during the personal hearing indicates that partners cannot be imposed penalty when the partnership firm was penalized. (i) C.C.E. C., SURAT-II Versus MOHAMMED MOHAMMED GHANI (2010 (259) E.L.T. 179 (Guj.) Penalty on partner Separate penalty when same also impose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 - Imposable only if person concerned in physically dealing with excisable goods with knowledge or belief that goods are liable to confiscation under Act/Rules Presence of mens rea necessary- Neither of the essential ingredients of offence under Rule 209A ibid shown to exist - Essential requisite for imposition of penalty not satisfied - Penalties set aside - Rule 26 of Central Excise Rules, 2002. [para 3.2] Words and Phrases Expression any other manner in Rule 209A of erstwhile Central Excise Rules, 1944 be understood in accordance with principle of ejusdem generis - Then, means any other mode of physically dealing with the goods. [para 3.2] Penalty - Personal penalty on partners/proprietor in addition to the firm not imposable Rule 209A of erstwhile Central Excise Rules, 1944 Rule 26 of Central Excise Rules, 2002. [para 3. In view of the above judicial pronouncements, penalty imposed on the individual partners is not legally sustainable. Respectfully following the above judicial pronouncements of Hon'ble CESTAT and Hon'ble Supreme Court, Instructions of CBEC and factual matrix, it is held that the appellant is entitled to the SSI Exemption Notif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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