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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 ..... /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 1. I hereby confirm the duty demand amounting to Rs.858517/- Rs. Eight lakhs fifty eight thousand five hundred seventeen only) under Section 11A(2) of Central Excise Act, 1944, and order the same to be paid forthwith by M/s. Saniya Bakers. 2. I order that the applicable interest on the demand confirmed, under the provisions of Section 11 AB of the Central Excise Act, 1944, be charged and recovered from M/s. Saniya Bakers 3. I impose a penalty of Rs.858517/-/- Rs. Eight lakhs fifty eight thousand five hundred seventeen only) on Saniya Bakers Mumbai-72, under Section 11AC of Central Excise Act, 1944. However, in terms of proviso to Section 11AC, the assessee having paid the duty & interest liable thereon, they have the option to pay penalty to the extent of 25% of the penalty so imposed provided the same is paid within thirty days from the date of communication of the order. 4. I hereby impose a penalty of Rs 150000/- (Rs. One lakh fifty thousand only) on Shri Aman Ansari and Rs150000/- (Rs. One lakh fif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation No. 8/2003- CE dated 01.03.2003 as amended, from 2003 onwards. 2.2 Shri Aman Ansari and Smt. Sabina Javed Alam Ansari are the partners of M/s. Saniya Bakers who are engaged in the manufacture of Kwality' Brand/Trade Mark Cookies. This trade mark belongs to Smt. Khurshid Bano Shariff Ahmed Ansari who had licensed M/s. Saniya Bakers to use the said trade mark 'Kwality' in connection with the goods manufactured by M/s. Saniya Bakers under licensed user agreement. M/s. Saniya Bakers were fixing labels on packages of goods which show maximum retail price (MRP) and sell through the distributors at the selling price which is less than MRP. Under, the Licensed User Agreement, the Licensor had allowed permission to the user to use the 'Kwality' trade mark, but the ownership of the said trade mark continue to vest with the Licensor. The noticee was using the said trade mark belonging to other person, and thereby the SSI exemption was not admissible to them in respect of excisable goods viz. biscuits and cookies manufactured and cleared by the said Noticee with the trade mark Kwality'. 2.3 Revenue after undertaking investigation has concluded that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trade name holder Shri Shariff Ahmed Ansari is not submitted by the appellants. Therefore it cannot be verified whether Smt. Khurshidbano Sharif Ahmed Ansari was legally authorized to execute the said assignment deed or otherwise. As seen from the website of the Registrar of Trade Marks, the registration of the said trade name has been challenged by Kwality Frozen Foods for infringement. The outcome of the said challenge and therefore ownership of the trade name is not known. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 Admittedly, there is a deed of assignment dated 15.11.2003 which reads as follows:- 4.3 Taking note of the above deed, Commissioner (Appeals) in his order dated 20.04.2016 has held as follows:- "5. The same issue for an earlier period was decided in the Order-in-Appeal No.CD/306 to 308/M-II/15 dt. 12.02.2015 by the present Appellate Authority. The issue & facts in this case is similar to that of earlier proceedings. 6. In the last two appeal proceedings, on the same facts and grounds, decision was taken against the appellant. However, during the personal! hearing, they inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the facts of the present case and the question raised herein even where the definition per se may be in pari materia with a definition given in another statute, the interpretation given in the context of one statute can! have only persuasive value in interpreting the definition in another statute: for the obvious reason that each definition has to be seen and interpreted in the context of the legislation in which it occurs and each definition has to be read as part of the main legislation where it occurs and not in relation to another piece of legislation. [para 11] 16. The appellants have argued that as per the deed of assignment the right, title and interest whether with the goodwill of their brand name had been transferred by M/s. National Gold Industries to the appellants on 3- 4-1993. The Commissioner (Appeals) could not have dismissed the said documentary evidence just because the Managing Director could not produce the same at the time of making his statement. The onus to prove that the said deed of assignment was ante dated was on the Department. The said documentary evidence could not be dismissed merely on the basis of conjectures or on the suspicion that since one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmu Commissionerate on the ground that during the restructuring, this unit might have fallen under the jurisdiction of Jammu Commissionerate. Accordingly, reference was made vide this office letter dt.22.01.2016 to Jammu Commissionerate, Chandigarh-1/II Commissionerate and Ludhiana Commissionerate. Jammu Commissionerate vide their letter dt. 11.03.2016 intimated that the case pertains to Central Excise Commissionerate, Agra. Reference to Agra Commissionerate vide this office letter of even no. dt. 14th March, 2016 was made who vide their letter dt. 18.03.2016 intimated that the before reorganization, Agra division was a part of Kanpur Commissionerate, so it is possible that the said case file may be available there. This office made a reference to Kanpur Commissionerate vide! letter of even no. dated 31 March, 2016 and Kanpur Commissionerate vide letter dt.06.04.2016 intimated that the appeal pertaining to M/s.Zarafashan Chemicals Pvt. Ltd., has been accepted by the department on 18.02.2000. Since, the above decision was accepted by the department and the facts and circumstances of the case are similar to this case, there is a justification for honouring the judgement of the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be a base for routine future Adjudications. In other words, nothing prevented the department from carrying out a full fledged investigation even after the issue of first Adjudication Order/Order-in-Appeal. Uptil now, four Adjudication Orders are issued but the department has never undertaken any investigation to prove or disprove even after first Appellate Order when there is no change in material facts over the period. Vide Order-in-Appeal No.CD/306 to 308/M-II/15 dt. 12.02.2015 at Para 10 it was stated by the undersigned that "However, the department should have verified the authenticity of the stamp paper when there was a big stamp scam in Maharashtra during the relevant time. Similarly, the department should have verified whether it has been property notarized through registered Notary and the witnesses statements Should have been recorded to know the authenticity of the Assignment Deed and affidavit Department should have taken up the matter even with the Trade Mark Registry to check the authenticity of the Assignment Deed. Department has failed to verify the genuineness of the Assignment Deed. Department should have investigated so as to dislodge their claim". Inspite of ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom statute itself as in case of Income Tax Act, 1961-Explanation to Section 140 of Customs Act, 1962 equates partnership firm with company in respect of commission of offences but no such corresponding provision in relation to imposition of penalty - No separate penalty warranted - Section 112 ibid. [paras 8, 9] (ii) COMMISSIONER OF CENTRAL EXCISE Versus JAI PRAKASH MOTWANI (2010 (258) E.L.T. 204 (Guj.) Penalty on partner Shortage of imported goods in EOU No specific role attributed to respondent/partner in firm Once the firm has already been penalised, separate penalty cannot be imposed upon the partner A partner is not a separate legal entity and cannot be equated with employees of a firm-Section 112(b) of Customs Act, 1962. (paras 5, 6] (iii) COMMISSIONER OF CUSTOMS (E.P.J Versus JUPITER EXPORTS (2007 (213) E.L.T. 641 (Bom.) Reference to High Court DEEC, Advance licence- Whether licence holder r transferee of licence obtained by manipulation and forging the documents for creating false records are entitled to import validly and legally and exempted from payment of duty Question relates to transferee, hence cannot be allowed to be raised in application under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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