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TMI Blog2023 (12) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... . Thus there are no infirmity in the order of the adjudicating authorities below when the said assignment deed as is stated to have been executed in favour of M/s. Real Industrial Coating (Appellant No. 1) to be an afterthought. The department has been meticulous in checking the records about brand names/trade marks from the portal for the purpose as is maintained by Ministry of Commerce and Industry, Department of Industrial Policy and Promotion, Controller-General of Patent Designs and Trade Mark as recorded in Para 11 of the order under challenge. It is on record that during the period of investigation also the portal was still recording Shri Gulshan Kumar Matta as the brand owner instead of Shri Rambaksh Matta of M/s. Real Industrial Coating - there are no infirmity with the findings of authorities below that the brands REAL and NICE were the brands of a different person/third party than the manufacturer in the present case i.e. M/s. Real Industrial Coating was not the owner of these brands - the said exemption has rightly been denied to the appellants. It is also observed that all the appellants herein while being examined during the investigation have admitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was found that M/s. Real Industrial Coating and other related firms, namely M/s. Real Paint India, M/s. H R Paints and M/s. Matta Paint House were under control of Shri Gulshan Matta, son of Shri Rambaksh Matta and his other family members. All these firms were found to be indulged in unaccounted manufacture of excisable goods i.e. paints and in clandestine clearances of the same through their sale counters without the cover of proper invoices and without payment of central excise duty. Those sale counters were also owned by their family members. The appellants were also found manufacturing products of brands REAL and NICE . 1.1 With these observations the Show Cause Notice No. 535 dated 09.07.2015 was served upon the appellants proposing the demand and recovery of Central Excise Duty collectively amounting to Rs.20,36,901/- for the period 2010-11 to 2011-12 along with the interest and the penalty on Shri Rambaksh Matta, Proprietor of M/s. Real Industrial Coating. Personal penalty on Shri Rambaksh Matta was also proposed. Penalty upon Shri Harish Kumar Matta of M/s. H R Paints and Shri Ramchand Matta of M/s. Matta Paints House was also proposed. Amount of Rs.15,00,000/- as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d counsel has mentioned that the penalties have been imposed without going through the mandate of the provision contained in Rule 25 and 26 of Central Excise Rules, 2002 according to which the penalty shall not exceed the duty of excise leviable. The penalty imposed in the present case are highly disproportionate. The imposition of penalty on the firm as well as the proprietor is alleged to be a case of double jeopardy. The penalties are accordingly prayed to be set aside. With these submissions, learned counsel has prayed for the order under challenge to be set aside and three of the appeals to be allowed. 4. While rebutting these submissions, learned DR has submitted that during investigation it had come on record that M/s. Real Industrial Coating, Proprietor, Rambaksh Matt, was manufacturing industrial paints of various brands. However no proper record was found maintained in the factory, accordingly the goods were seized. The procurement and dispatch of the said goods was mentioned to be looked after by Shri Gulshan Kumar Matta, son of proprietor Shri Rambaksh Matta. It was found that Shri Gulshan Kumar Matta owned M/s. Real Paint India and was manufacturing paints and resin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed? While relying upon Section 11A of the Central Excise Act, 1944 and the definition of relevant date given there under, the adjudicating authority had held that the relevant date in the impugned case is the due date of filing of return for quarter ending 30.06.2010, hence the relevant date is 10.07.2010. Since the show cause notice was issued on 09.07.2015, it is well within the period of five years of limitation. (iii) Whether the copy of assignment deed in respect of brands REAL NICE is admissible? The adjudicating authority observed that the assignment deed is of 27.11.2010. The assignment deed assigning brands REAL and NICE to Shri Rambaksh Matta, Proprietor of M/s. Real Industrial Coating, is dated 27.11.2010 notarized on 24.01.2011. It was never brought to the notice of the investigating team hence the same is held inadmissible being an afterthought. (iv) Whether M/s. Real Industrial Paints is eligible for SSI exemption under Notification No. 08/2003 dated 01.03.2003? Since the assignment deed assigning brands to the Appellant No.1 was held inadmissible, the sale of the products of these brands was held to be sale of third party brand. Hence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, Controller-General of Patent Designs and Trade Mark as recorded in Para 11 of the order under challenge. It is on record that during the period of investigation also the portal was still recording Shri Gulshan Kumar Matta as the brand owner instead of Shri Rambaksh Matta of M/s. Real Industrial Coating. In view of these findings, I do not find any infirmity with the findings of authorities below that the brands REAL and NICE were the brands of a different person/third party than the manufacturer in the present case i.e. M/s. Real Industrial Coating was not the owner of these brands. The sale value of the product of these brands has rightly been excluded from calculating the value mentioned under SSI exemption Notification No. 8/2003. I, therefore, hold the said exemption has rightly been denied to the appellants. 4.4 I also observe that all the appellants herein while being examined during the investigation have admitted that the goods in question were cleared without the cover of proper invoices. 40% of the goods thereof were sold and purchased on kacchi parchis. The said kacchi parchis were recovered from all the premises as were searched during investigation and wer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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