9911796707
TMI Blog2000 (4) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 11AC of the Central Excise Act is imposable on them and whether penalty is imposable separately on the partners. 2.Briefly stated the facts are that M/s. Davendra Industries, Appellant 1, manufacture ginning machines and spare parts thereof. A show cause notice dated 17-5-1998 was issued to them along with their two partners Mrs. R.S. Sisodia and Mr. M.S. Sisodia, Appellants No. 2 and 3, for demanding duty for the period from 1993-1994 to 1996-1997 and imposing penalty. The Commissioner, under the impugned Order, confirmed the demand of Central Excise duty amounting to Rs. 25,57,651/- and imposed equal amount of penalty on appellant No. 1 under Section 11AC of the Central Excise Act read with Rules 173Q, 9(2), 52A and 226 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the goods which were merely invoiced under the brand name 'UDP'; that the goods which were merely invoiced under brand name, restriction imposed under Notification No. 1/93 is not applicable as held in Forest Industries Pvt. Ltd. v. CCE - 1996 (83) E.L.T. 570 (T). The learned Advocate mentioned that Shri Rajendra S. Sisodiya in his statement dated 6-3-1997, has categorically replied that they have no brand name and they do not manufacture their goods under any brand name; that on all bills they mention 'UDP' brand. The learned Advocate also referred to the statement dated 1-12-1997 of Mahendra S. Sisodiya who also answered in negative when questioned as to whether they affix any brand name on their ginning machines. He relied upon the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally he submitted that no penalty can be imposed on Appellant No. 1 under Section 11AC of the Central Excise Act for the clearances effected prior to 28-9-1996 the date on which this section came into force. He relied upon the decision in the case of Maruti Udyog Ltd. v. CCE, 1998 (101) E.L.T. 675 (Tri.) = 1998 (25) RLT 246 (CEGAT). He also mentioned that penalty on Appellant Nos. 2 and 3 had been imposed only on the ground that they happen to be partners in the firm; that no part was played by them in commission of the alleged offence has been disclosed either in the show-cause-notice or in the impugned Order; that before penalty under Rule 209A can be imposed, the ingredients mentioned in rule 209A have to be proved to exist; that as pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irs of supplying machines in the name of Kunal Engg they surrendered their licence. Regarding charge of selling the impugned goods affixed with brand name of other person, the learned S.D.R. submitted that M/s. U.D. Patel Co. were their sole selling agents who were soliciting orders and as such they would sell the goods in their own brand name; that it is evident from letters dated 7-4-1995, 10-4-1995 and 19-6-1995 at pages 168 to 170 of the Paper Book the plates were affixed by the Appellants before despatch of the goods. The Learned S.D.R. further submitted that if the brand name was affixed only on 25 machines, there was no need to mention the brand name on the invoices issued by the Appellants; that all circumstances indicate that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attendence Register which by themselves do not go to prove that M/s. Kunal Engg were manufacturing ginning machines in question, they have not countered the version in Panchnama by showing purchase of materials, machines by Kunal Engg. and its factory premises, etc., Nothing has also been brought on record to show that independent witness who drew Panchnama have retracted therefrom or denied to have recorded so in Panchnama. The learned Advocate has emphasised that fact of non existence of Kunal Engg. was only mentioned in Panchnama and not in the statement. We find that in his statement dated 6-3-1997, Shri Rajendra Singh Sisodiya clearly affirmed the facts narrated in Panchnama (question No. 18 and answer thereto) Further, in reply to qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of the direction given by M/s. U.D. Patel Co. in their letters dated 7-4-1995 and 10-4-1995 we hold that the plates were affixed by the Appellants themselves. We, however, agree that Revenue has not proved sucesesfully that the plates containing brand name 'UDP' were affixed on all the ginning machine manufactured and cleared by the Appellants. We, therefore, hold that brand name 'UDP' of another person had been affixed on 25 ginning machine, by the Appellants and accordingly benefit of small scale exemption notification will not be available to them in respect of these 25 machines. We agree with the learned Advocate that, as held by the Tribunal in Maruti Udyog Ltd., 1998 (101) E.L.T. 675 (Tri.) = 1998 (25) RLT 246 (CEGAT), penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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