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TMI Blog2008 (10) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... und emergency lights of SUNCA brand, torches and other electronic items with the brand name of SANYO and SUNNY and seized the said goods valued Rs. 51,220/- involving duty of Rs. 8,195/-; in addition, they seized private documents/Kachcha pads which contained accounts in a coded form relating to removal of emergency lights, torches etc. (b) Shri Devki Nandan Aggarwal, Proprietor of the said firm, in his statement taken on the very same day inter alia, admitted that they were clearing the emergency lights, torches etc. with the brand name of others; that to enable manufacture of SUNCA brand emergency lights, they have imported the moulds from Hongkong in the year 1996; that the brand name SUNCA is owned by the Hongkong based party, M/s Miku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laimed that the value adopted based on Kachcha Pads was incorrect and that a sum of Rs. 4,43,84,938/- representing carry forward amount has been wrongly added as fresh transactions. (g) The Commissioner accepted this claim and accordingly held that value of removals based on Kachcha pads is only Rs. 4,78,73,476/-. As the goods were subject to MRP based assessment, after allowing permissible deduction, he confirmed the duty demand of Rs. 49,78,841/- along with interest; he imposed penalty of Rs. 49,78,841/- on M/s. Hisaria Electronics; he imposed penalty of Rs. 15 lacs on Shri Devki Nandan Aggarwal, Proprietor of the said firm, and Rs. 2 lacs on Shri Rakesh Aggarwal, son of the Proprietor of the said firm. 4. Learned advocate for the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s highly inflated. He also refers to the transactions relating to one Mr. Kakar which indicated a receipt of Rs. 1,000/- in his name and claims that it represents a sum of Rs. 1 lac received from Mr. Kakar as a temporary loan and the same has nothing to do with the sale of emergency lights. (e) When the Department held that the turnover is to the tune of Rs. 91 lacs for the year 2000-01 and about Rs. 184 lacs for the year 2001-02 and Rs. 46 lacs for the year 2002-03, they ought to have sought further clarification from the Proprietor or from the son of the Proprietor who has maintained the said records. In fact, no statement was taken from Shri Rakesh Aggarwal, son of the Proprietor of the firm. (f) The Commissioner has not indicated to w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the Commissioner (Appeals) as it was not perhaps considered significant. (c) Regarding the quantum of clearances arrived at by the original authority, the Proprietor of M/s. Hisaria Electronics has explained in his statement the manner of maintaining the coded account. They have been maintained systematically on a day-to-day basis indicating receipts and also the expenses. (d) The value of clearances mentioned by the proprietor in his statement dated 30-5-2002 related only to accounted transactions. As they cleared the goods in the brand names of others, violating the patent laws, they were not in a position to account the same and clear them openly on invoices. The unaccounted transactions have been maintained in a coded form by tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot belong to M/s. Mikura Impex, the applicant-firm was entitled to use the brand name and they were eligible for exemption and they relied on the Board's Circular No. 52/52/94-CX dated 1-9-1994. The said Circular was issued in the context of several parties manufacturing locks with a brand name that none of them owned. The present case is entirely different. While the Commissioner has not indicated in his order as to whom the brand name belonged to, learned DR has produced print outs from web sites indicating that the brand name SUNCA is registered in the name of M/s. Sun Fat (Holding) Co. Ltd., a manufacturer of rechargeable lamps and batteries. Therefore, it emerges that the said brand name does not belong to the appellant-firm and it bel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learly confessed that the transactions relating to emergency lights and torches have not been reflected in the said books of accounts. The claim that some of entries related to receipt of money on loan basis as in the case of Shri Kakar, appears to be an afterthought. Learned DR has drawn our attention to several entries relating to supply of goods to the said Shri Kakar. We also find that the Commissioner has accepted the error pointed out in treating Rs. 4,43,84,938/- which represented the carry forward amount as amount relating to fresh transactions. The private records were maintained on a day-to-day basis indicating the number of pieces sold on certain dates and also indicating the names of parties and accounted the money received adju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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