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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 ..... mposed on proprietor when penalty has been imposed on proprietary concern - E/2116-2118/2005 - 765-767/2008-EX(PB), - Dated:- 7-10-2008 - Justice S.N. Jha, President and Shri M. Veeraiyan, Member (T) Shri K.K. Anand, Advocate, for the Appellant. Shri V. Chaudhary, DR, for the Respondent. [Order per : M. Veeraiyan, Member (T)]. - These appeals are filed against the order of the Commissioner No. 89/2005 dated 16-3-2005. 2. Heard both sides. 3. The relevant facts, in brief, are as follows: (a) On 30-5-2002, the officers visited the premises of M/s. Hisaria Electronics and conducted search operations and found emergency lights of SUNCA brand, torches and other electronic items with the brand name of SANYO and SUNNY a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfiscation, the amount of redemption fine and penalty. However, she held that the names SUNCA and SUNNY did not fall under the category of brand names and hence the party was entitled to exemption under Notification No. 8/02; she directed reworking of the duty. (e) On completion of investigations, a show cause notice was issued to M/s. Hisaria Electronics proposing demand of duty on total value realized amounting to Rs. 9,22,58,414/- and proposing penal action against M/s. Hisaria Electronics, its proprietor Shri Devki Nandan Aggarwal, and Shri Rakesh Aggarwal son of Shri Devki Nandan Aggarwal. (f) During adjudication, the party claimed that the value adopted based on Kachcha Pads was incorrect and that a sum of Rs. 4,43,84,938/- repre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the owner of the brand name SUNCA and, therefore, they are eligible for exemption under Notification 8/2000. In the light of the above, the denial of exemption applicable to small scale units is not correct. (d) Further, the value of clearances given by Shri Devki Nandan Agarwal, the Proprietor of the firm in his statement dated 30-5-2002 was only Rs. 10,81,347.50 for the year 2000-01 and Rs. 49,48,530.58 for the year 2001-02. The Department has erroneously included receipts in the Kachcha pads which are in the nature of loans and other transactions not relating to sale of emergency lights and other branded goods. Therefore, the demand is highly inflated. He also refers to the transactions relating to one Mr. Kakar which indicated a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f goods valued at Rs. 51,220/-, the same cannot be applied to the present situation. The dispute before her was not about the owner ship of SUNCA brand. She has relied on the letter of M/s. Mikura Impex to hold that they were not the owner of SUNCA brand and that they were only dealer of capital goods. She has also held that mere engraving of word SUNCA in the mould would not amount to affixing brand name. The dispute did not relate to whether the mould is a branded item or not. Further, the said order confirmed the confiscation of the seized goods with the redemption fine and the penalty imposed, therefore, no appeal was filed against the observation by the Commissioner (Appeals) as it was not perhaps considered significant. (c) Regardin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Mikura Impex. Subsequently, a letter dated 25- 8-2003 received from M/s. Mikura Impex was produced along with reply to the notice, according to which, M/s. Mikura Impex were only providing moulds and dies relating to emergency lights and they were not the owner of the brand name SUNCA. The Commissioner has held that the brand name SUNCA did not belong to the appellant-firm but belonged to a reputed firm and he has not mentioned the actual owner. The benefit of notification 8/2000-C.E. was not available when the manufacturer was manufacturing goods with the brand name belonging to others. A submission has been made that inasmuch as the brand name did not belong to M/s. Mikura Impex, the applicant-firm was entitled to use the brand name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Kachcha pads. Even in the private records they have so carefully avoided the actual figures. Their mala fide intention is clear from the fact that they chose to record an amount of Rs. 1 lac as Rs. 1000/- etc. The nature of entries have been explained by Shri Devki Nandan Aggarwal, Proprietor of the firm, and his statement has not been retracted. In fact, in his subsequent statement given 10 months later also he confirmed his original statement. In his statement dated 30-5-2002, it has been clearly mentioned that the accounted turn over as per books of accounts were about Rs. 10 lacs for the year 2000-01 and about Rs. 49 lacs for the year 2001-02. He has clearly confessed that the transactions relating to emergency lights and torches ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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