2013 (9) TMI 133 - AT - Central Excise

Appeal dismissed: Cross-examination denial, TECON brand dispute rejected, time-barred demand dismissed.

M/s. Adikesh industries Versus CCE, Ahmedabad

The appeal challenging the denial of cross-examination of witnesses and disputing the determination of TECON as a brand name was dismissed. The ... Brand name in SSI exemption – Held that:- the proprietor of the appellant firm has admitted that they have used TECON brand also in addition to their brand. In these circumstances, decision of the lower authority not to allow cross examination cannot be found fault with. According to the definition of brand name or trade name in the notification extending exemption benefit to the SSI unit, brand name or trade name need not have been registered. What is required is that it should have been used by the owner and regularly being used. In this case, there is no dispute that brand name TECON was being used by the owner and there is also no dispute that Techdrive Engineering is the owner - View that TECON that it is not a brand name is not accepted. - assessee is not the owner - Decided against the assessee. Limitation period - Demand is time barred in respect of Sr.No.1 to the Annexure of show-cause notice dated 28/05/2004 - Five years have to be counted from this date and show-cause notice was issued on 08/07/2009 which is more than five years – Held that - Statement was recorded only in the year 2009 and, therefore, it cannot be said that investigation did not complete earlier – As per Hon’ble High Court of Gujarat decision in Neminath[2010 (4) TMI 631 - GUJARAT HIGH COURT] clearly provides that once suppression/misdeclaration is proved, extended period can be invoked. Cum duty price – Held that:- If duty is charged later the amount recovered as per invoice has to be treated as cum duty – Appeal rejected - Matter is remanded to the original adjudicating authority for the limited purpose of working out cum duty realization, amount of duty to be demanded and penalty to be imposed – Decided against the Assessee. Issues:1. Cross-examination of witnesses not allowed.2. Determination of TECON as a brand name.3. Usage of TECON brand before TECHDRIVE ENGINEERING.4. Lack of financial transactions with brand owner.5. Time-barred demand issue.Issue 1: Cross-examination of witnessesThe appellant contested the denial of cross-examination of Panch witnesses by the Adjudicating Authority, arguing that no gear box was found with the TECON brand name. However, it was revealed from records that the appellant mentioned the brand name in their invoices, and the proprietor admitted to using the TECON brand alongside their own. Consequently, the decision to disallow cross-examination was upheld.Issue 2: Determination of TECON as a brand nameThe appellant argued that TECON was merely part of the company name and not a brand name. However, based on the definition of brand name in the exemption notification for SSI units, registration was not a prerequisite; regular usage by the owner was sufficient. As TECON was used by the owner (TECHDRIVE ENGINEERING) and the appellant, it was deemed a brand name.Issue 3: Usage of TECON before TECHDRIVE ENGINEERINGThe appellant's claim that they had been operating for 35 years, predating TECHDRIVE ENGINEERING, was dismissed as they failed to prove using the TECON brand before the latter's existence. The proprietor's admission of using another person's brand name further weakened this claim.Issue 4: Lack of financial transactions with brand ownerThe appellant's argument of not having financial dealings with the brand owner was rejected since such transactions were not mandated for SSI exemption eligibility.Issue 5: Time-barred demandRegarding the time-barred demand, the appellant contended that the show-cause notice exceeded the five-year limit. However, it was established that as an SSI unit, the appellant was required to file returns, and the notice fell within the extended timeframe under Sec. 11A of the Central Excise Act, 1944. The comparison to a Supreme Court case highlighted the specificity of each judgment and the relevance of investigation completion in determining time limitations.ConclusionThe appeal against the duty demand, interest, and penalty was dismissed, with the matter remanded for cum duty realization calculations. The judgment emphasized the legal interpretations of brand names, time limitations, and the necessity of compliance with excise rules for SSI units.