TaxTMI 
TaxTMI 
2019 (4) TMI 891
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....andestine clearance of goods without payment of duty by misusing SSI benefit and brand names. During investigation searches were conducted at various premises including residential premises of Director. After investigation the Department issued a Show Cause Notice to various appellant, which were adjudicated upon and the demands were confirmed as under; Appellants Nos. Appeal No. Order-in-Original no. & Date Appellants Name Central Excise Duty Penalty 1. 293-CE/Appl-I/North/2017 DLI/EX/001/DC/04/2017-18 dated 21.06.2017 M/s Ayush Enterprises Rs.28,94,696+ Interest Rs. 28,94,696/- 2. 295-CE/Appl-I/North/2017 DLI/EX/001/DC/06/2017-18 dated 21.06.2017 M/s Akshat Enterprises Rs. 30,28,544 + Interest Rs. 30,28,544/- 3. 297-CE/Appl-I/North/2017 DLI/EX/001/DC/06/2017-18 dated 21.06.2017 M/s Steel Zone Company Pvt. Ltd. Rs. 28,93,754/- + Interest Rs. 28,93,754/- 4. 294-296,298-CE/Appl-I/North/2017 DLI/EX/001/DC/04/ to 06/2017-18 dated 21.06.2017 M/s Naveen Jain Nil Rs. 3,00,000/-+ Rs. 3,00,000+ Rs. 3,00,000/- These orders were upheld by the impugned order. 3. During investigation statements of v....
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....d the Revenue has included those figures also, despite of the fact that the VAT returns were submitted before the Adjudicating Authority. The Department has even not given the benefit of cum duty price while computing the demand against the various appellants. It was also argued by Ld. Advocate that the brand name 'AKS' was joint family brand name and it has been assigned to the various other company by assignment deed dated 1/04/2012. The Commissioner (Appeals), in the impugned order has combined the proceeding in respect all the appellant as a whole, to its sister units, namely, Ayush Enterprises as well as Steel Zoint Company Pvt. Ltd. and rejected the appeals through a common order. He relied upon by the various case laws regarding the issue involved; (i) Kali Aerated Water Works vs Commissioner of Custom Ex., Madural. (ii) Vikram Cement P. Ltd. vs. Commissioner of C, Ex., Kanput. (iii) Commissioner vs. Vikram Cement Pvt. Ltd. (iv) Commissioner of Central Excise, Delhi-IV. Kuber Tabacco India Ltd. (v) G-Tech Industries vs. Union of India. (vi) Commissioner of Central Excise vs Kurele Pan Products Pvt. Ltd. (vii) Commissioner of Income Tax, vs Dhingra Metal ....
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.... Act, Delhi High Court in case of J K Cigarettes Limited vs. CCE, 2009 (242) ELT (189) (Del) para 12 of the decision held as under; 12. Bare reading of the above section manifests that under certain circumstances, as stipulated therein, statement made and signed by those persons before any Central Excise Officer of a gazetted rank during the course of inquiry or proceedings under this Act can be treated as relevant and taken into consideration if under the given circumstances such a person cannot be produced for cross-examination. Thus, this provision makes such statements relevant for the purposes of proving the truth of the facts which it contains, in any prosecution for an offence under the Act in certain situations. Sub-section (2) extends the provision of sub-section (1) to any proceedings under the Act other than a proceeding before the Court. In this manner, Section 9D can be utilized in adjudication proceedings before the Collector as well. In the present case, provisions of Section 9-D of the Act were invoked by the Collector holding that it was not possible to procure the attendance of some of the witnesses without undue delay or expense. Whether such a finding was oth....
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.... which a statement, made and signed by a person before the Central Excise Officer of a gazetted rank, during the course of inquiry or proceeding under the Act, shall be relevant, for the purpose of proving the truth of the facts contained therein. 16. Section 9D of the Act came in from detailed consideration and examination, by the Delhi High Court, in J.K. Cigarettes Ltd. vs. CCE, 8 of 16 CWP No. 12615 of 2016, CWP No. 12616 of 2016, CWP No. 12617 of 2016 and CWP No. 12618 of 2016. 2009 (242) ELT 189 (Del). Para 12 of the said decision clearly holds that by virtue of sub-section (2) of Section 9D, the provisions of sub-section (1) thereof would extend to adjudication proceedings as well. There can, therefore, be no doubt about the legal position that the procedure prescribed in sub-section (1) of Section 9D is required to be scrupulously followed, as much in adjudication proceedings as in criminal proceedings relating to prosecution. 17. As already noticed herein above, sub-section (1) of Section 9D sets out the circumstances in which a statement, made and signed before a gazetted Central Excise Officer, shall be relevant for the purpose of proving the truth of the fac....
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.... the said challenge could be ventilated in appeal, the petitioners have also invited attention to an unreported short order of the Supreme Court in UOI and another vs. GTC India and others in SLP (C) No. 2183/1994 dated 03/01/1995 wherein it was held that the order passed by the adjudicating authority under Section 9D of the 10 of 16 CWP No. 12615 of 2016, CWP No. 12616 of 2016, CWP No. 12617 of 2016 and CWP No. 12618 of 2016. Act could be challenged in writ proceedings as well. Therefore, it is clear that the adjudicating authority cannot invoke Section 9D(1)(a) of the Act without passing a reasoned and speaking order in that regard, which is amenable to challenge by the assessee, if aggrieved thereby. 22. If none of the circumstances contemplated by clause (a) of Section 9D (1) exists, clause (b) of Section 9D (1) comes into operation. The said clause prescribes a specific procedure to be followed before the statement can be admitted in evidence. Under this procedure, two steps are required to be followed by the adjudicating authority, under clause (b) of Section 9D (1), viz. i) the person who made the statement has to first be examined as a witness in the case before th....
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....e same Brand names in the same area. Similarly the appellant is not selling his goods outside his marketing area. So far his business is concerned the appellant appears to be the only legal owner of the Trade Mark within his marketing area. This has been clearly brought out in the Mutual Agreement dated 12-3-1993 which has been duly presented on 12-3-1993 itself for registration whereas the impugned Notification No. 59/94 came into effect only from 1-4-1994 and hence no motive can be attributed against the appellant in respect of the Mutual Agreement. I have read the entire contents of Mutual Agreement. I find that Mr. K.P.R. Sakthivel is also a party to the said Mutual Agreement and no royalty is also payable to the said K.P.R. Sakthivel. Even Mr. K.P.R. Sakthivel has specifically agreed that he cannot use the brand name in the marketing area of the appellant. Thus there seems to be recognition of individual proprietary rights over the brand names within the respective specified marketing area. The nature of succession of the proprietary rights of the brand names have also been clearly dealt with. It clearly establishes that the appellant and the male descendants are alone are ent....