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2022 (12) TMI 1463
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....AA of the Central Excise Act, 1944; iii. I impose a penalty of Rs.81,03,341/- (Rupees eighty one lakhs eight thousand three hundred forty one only) under clause (a) to Sub Section (1) of Section 11AC of the Central Excise Act, 1944 and/or Rule 25 of the Central Excise Rules, 2002 upon M/s Kalki Industries; iii. I order for appropriation of Rs.3,00,000/- (Rupees three lakhs only) against the above confirmed liabilities." 2.1 Intelligence was gathered to the effect that the appellant was evading central excise duty by wrongly availing the benefit of SSI exemption (Notification No. 8/2003-CE dated 01.03.2003) by not resorting to the correct valuation of the goods cleared by them. Appellant is a proprietary unit engaged in manufacture and clearance of excisable goods, namely electrical accessories, bells, chokes and street light fixtures classifiable under Chapter Heading 8536, 8531, 8504 and 9405 of the first schedule to the Central Excise Tariff Act, 1985. Appellant is using the brand name "KALKI". 2.2 The excisable goods falling under Chapter Heading 8536 are notified under Section 4A of the Central Excise Act, 1944 and are accordingly required to be assessed....
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....foregoing para 5(1) above." 2.4 The show cause notice has been adjudicated by the Commissioner as per the impugned order. Aggrieved appellant has filed this appeal. 3.1 We have heard Shri Shailesh P. Sheth, Advocate for the appellant and Shri Amrendra Kumar Jha, Deputy Commissioner, Authorised Representative for the Revenue. 3.2 Arguing for the appellant, learned counsel submits that:- • The issue involved in the matter is with reference to the denial of SSI exemption admissible to the appellant. • The appellant unit was functioning as a partnership firm wherein Shri Mohanlal G. Gosrani and Smt. Hemlata M. Gosrani were the partners. • He brand name KALKI was jointly held by both of them and was used for manufacture and clearance of the goods from the unit. Certificate of registration of trade mark No. 622155 dated 14.12.2001 was issued in their name. • In the month of September 2005, w.e.f. 01.09.2005, Shri Chandrakant G. Gosrani, the present proprietor, was inducted as the third partner in the partnership deed. Thereafter they jointly entered into a dissolution deed dated 30.09.2005 whereby the earlier partners, namely S....
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....he relevant period, the aggregate value of clearances made by the Appellant of all specified goods has crossed the threshold of Rs. 1.50 crores during the F. Y. 2009-10 only. As can be observed from Annexure 'B' to the show cause notice (at pg. 204 to 206 of the Paper-book), the aggregate value of clearances stood at Rs.1,63,16,653/- during F. Y. 2009-10 and therefore, the duty @8% (at 10% in case of clearances during March, 2010) would be payable on Rs.13,16,653/-. The threshold limit of Rs. 1,50,00,000/- was crossed by the Appellant during February, 2010 and consequently, the total demand of duty (including E.cess and H&S E.Cess) works out to Rs.1,28,241/-. Appellant submits that during investigation, it had already deposited an amount of Rs. 3,00,000/- which is more than sufficient to cover, not only the duty payable of Rs. 1,28,241/-, but also the interest payable thereon as applicable. Considering the fact that the matter is too old, the Appellant waives any refund arising after the adjustment of the amount of duty payable of Rs. 1,28,241/- and interest thereon, from Rs. 3,00,000/- deposited by it during the investigation. • Considering the totality of the case an....
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....eady held in the aforementioned decision that effect of making the registration certificate applicable from retrospective date under the trade mark law is based on the principle of deemed equivalence to public user of such mark whereas such deeming fiction cannot be extended to the excise law and that the same is only confined to the provisions of the Trade Marks Act" 27. The noticee in their shown cause dated 21.12 2011 have annexed a photocopy of the Trade Marks Journal number 1506 dated 17.10.2011 at Exhibit K3, which shows the registration of trademark KALKI in the name of Chandrakant Gosrani (HUF) under the Trademarks Act, 1999. In application of the principle of deemed equivalence; the said journal shows such registration to be effective from 01.07.2009. This is the date, when Shri Chandrakant Gosrani (HUF) had made application for registration of this trademark in their name. This application had been made through M/s Aditya & Company, Trademark & Patent Attorney. 28. However, in the ratio of the decision in Meyer Health Care, supra, the date of registration of the mark KALKI, in the name of Shri Chandrakant Gosrani (HUF) would only be on and from 17.10.201....
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...."that the assignment has taken place along with the goodwill of the business in which the trade mark was used". 32. Appended thereto is the undated receipt given by Shri Mohanlal Gosar Gosrani and Shrimati Hemlata Mansukhlal Gosrani for receipt of the sum of Rs.10,000/- Ly the cheques number 942042 and 942043 of the HDFC Bank Limited, Mumbai for sum of Rs.5,000/- each. 33. The relevant period in this case is the financial years 2006- 07 to 2010-11. The application for registration of the trademark by Shri Chandrakant Gosar Gosrani HUF is 01.07.2009. 34. The above documents, however, not only show the registration of trademark KALKI in the records of the Trademark registry on 17.10.2011; but also, its assignment, for the first time, by Shri Mohanlal Gosar Gosrani and Shrimati Hemlata Mansukhlal Gosrani in favour of Shri Chandrakant Gosar Gosrani HUF only on and from 06.05.2011 for a considered sum of 10,000/-. This assignment is, thus, not only beyond the relevant period; but also, much beyond the date of application of registration. 35. In the face of ratio, clearly stated by the apex court of this land in Meghraj Biscuit and restated in Meyer He....
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....155 Class -09 of MOHANLAL HEMLATA GOSAR GOSRANI MANSUKHLAL and GOSRANI both are Indian Nationals Partners of KALKI INDUSTRIES, Kalki Estate, Ishwarbhai Patel Road, Goregaon East Mumbai 400 Maharashtra, India, 063 State of Maharashtra, India, 1. That the aforesaid trade mark No.622155 l.e. KALKI label is registered in our name and the said registration is valid and subsist for the further period of 10 years l.e. up to 16th March, 2015. 2. That due to age of retirement we are not willing to continue of business of manufacturing of Electrical goods and accessories in the name and style of M/S. KALKI INDUSTRIES, at Kalki Estate, 1.B Patel Road, Goregaon East, Mumbai 400 063. 3. That the above mentioned partners I.e. Mohanlal Gosar Gosrani, and Hemlata Gosrani have handed over all rights concerned to the above mentioned trade mark along with the goodwill of the said mark to Mr. Chandrakant Gosar Gosrani HUF vide agreement dated 30-09-2005." "AFFIDAVIT We, MOHANLAL GOSAR GOSRANI and HEMLATA MANSUKHLAL GOSRANI, Indian Nationals partners of M/S. KALKI INDUSTRIES, Kalki Estate, Ishwarbhai Patel Road, Goregaon (East) Mumbai 400 063, State of Maharashtra....
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....eing manufactured by it at other place. Arco-Whitney was manufacturing hydraulic equipments, which were not being manufactured by M/s. American Refrigerator. The appellant having purchased the going concern M/s. Arco-Whitney was entitled to use the brand name as its own right and it cannot be said that they were using somebody else's brand name. 5. The Hon'ble Supreme Court in the case of CCEx., Ahmedabad v. Vikshara Trading and Invest. Pvt. Ltd. reported in 2003 (157) E.L.T. 4 (S.C.) has held that when there was an assignment of Trade mark in favour of other person, the benefit of small scale notification cannot be denied and the trade mark need not necessarily be in respect of all the goods and it is permissible in law to have same brand name for different classes of goods owned by different persons. In the instant case, it cannot be said that the brand name of M/s. Arco-Whitney was also being used by M/s. American Refrigerators Co. In fact clause 13 refers to the purchaser's sanction to the appellants for using the brand name and strengthens the appellant's case that after the day of the deed date, the trade name belongs to the appellant. Further, clause 12 of the agree....
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....nder Section 37B of the Central Excise Act, 1944 for the purpose of ensuring uniformity of levy of duties of excise the Central Board of Excise & Customs has ordered that the following general principles will be applicable to Notification No. 175/86-C.E. :- (i) The question whether different partnerships having common partners are treatable as separate manufacturers or the same manufacturer, would be a question of fact in each case to be determined on the basis of such factors among other, like composition of the partnership, existence of the factory, licence, nature of goods manufactured, etc. (ii) Different firms will be treated as different manufacturers for the purpose of exemption limit. But if a firm consisting of certain partners say A, B & C has got more than one factory, all these factories should of course be combined. Limited Companies whether public or private are separate entities distinct from the shareholders composing it. Hence each limited company is a manufacturer by itself and will be entitled to a separate exemption limit. (iii) If there are two firms with only some of the partners in common, each firm is entitled to separate exemption....
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....dated 31- 5-2004 with effect from 24-11-1997. The Certificate was sent for verification and the Trade Marks Authority had certified the same as true .............................. It is a settled law that unless a Trade Mark or Brand Name was registered in the name of the assessee, he was not entitled to the benefit of SSI exemption notification..............." It can be seen from the reproduced portion of the findings it is undisputed that the Brand name "Irony" was registered with the authorities in the name of Venky & Co. and from the deed of assignment it could be deduced that the said Brand name was assigned to the appellant ICPL in this case. Nothing is brought on record to show that even after assigning the Brand "Irony", Venky & Co. were using and clearing the products with the said Brand name. In the absence of any such evidence we have to hold that by virtue of being Brand assigned to them, ICPL is entitled to avail the benefit of small scale exemption." We are of the view that case of the appellant is squarely covered by the above decisions and nothing contrary has been produced before us. SSI exemption would be available to the appellant during the entire period o....
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....Gosrani and Miteg Goeatni hereinafter referred to as "the Incoming partner and the party of the THIRD PART 16. of the expression, unless it be repugnant to the context or meaning thereof means and Includes their respective legal heirs, executors, administrators, successors or assigns as the case may be) WHEREAS the parties of the first and second parts were carrying on business of manufacturing of electrical goods and accessories in the name and style of M/S. KALKI INDUSTRIES In partnership w.e.f April 01,1989 at Kalki Estate, IB Patel Road, Goregaon East, Mumbai 400 063 vide Deed of Partnership executed on April 01, 1989; AND WHEREAS the party of first part due to his advancing age and the party of the second part due to her other from 9-05 occupation have decided to admit party of the third part as a partner with effect gong... 5 and assist in the carrying of the partnership i ship EDMI NOTERPROership in writing as under: Tee hereinabove desire to reduce the terms and conditions of the QUAD CAME reade NOW THIS INDENTURE WITNESSFIMA UNDER the 2023/1/18 11:0 54 1) is hereby agreed that the parties of the ....
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.... of the continuing/incoming r partnere 101 THAT esther by the party of the first part singly or by the parties of the third and fourth parts is agreed by the continuing/Incoming partners that the Bank Account(s) shall be operated rally. Pruviuled that the opening and closing of any bank accounts) as the name of the partnership shall be deme jentily by all the sentinwing/ineaming perteeretu 11) THE capital required for running the business will be contributed by the partnere a when required for the purpose of business. 12) HAI the drawing power for meeting persoal expenses anall be determined from time to time by the uurinuing/nooming partnera. 13) THAT the share of Profits and Losses (including capital gains/Losses) of the partnership business shall be divided between the continuing In uing/ Incoming partner an under Shri Mohanial Goeren b) c) Smt Hemlata Mansukhial Gosrani 10% M/s CG Gosran HUF B0% TOOW UP 55 1)IHAT subject to those presents, each of the continuing incoming partne- hamaby nominal constitutes and appoints the ether as their egent of the partnership firm for the purpose of bal ness of the ....
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....on on the basis provided herein: ereur In ree, entitled to dow 500 Rs. INDIA ५००.. (राजà¥à¤¯à¤®à¥‡à¤µ जयते) HURS R$500 पाà¤à¤š सौ रूपये @ FIVE HUNDRED RUPEES महाराषà¥à¤Ÿà¥à¤° MAHARASHTRA आई आà¤à¤•à¤¾ उच अपान मà¥à¤¦à¥à¤°à¤¾à¤‚क कारà¥à¤¯à¤¾à¤²à¤¯ बांदà¥à¤°à¤¾ विसà¥à¤¤à¤¾à¤°à¤¿à¤¤ विकà¥à¤°à¥€ रà¥à¤• दिनांक KALKI INDUSTRIES THE D ਆਸੀਸੀ/ਅਸਰ 08636 2 JUN 2005 This agreement for dissolution or partners Patel Mumbai, this 30 day of y Sep 2005, between: ---- विकला. 1) SHRI MOHANLAL GOSRANI, adult, Mumbai inhabitant residing at 31/2, Varma Villa, Vithalbhal Road, Vile Parle West, Mumbai - 400 05 bederfatter referred to as the party of....
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....r against the other party. by the firm or by the other party to these presents , and now (3) It is hereby specifically agreed that the goodwill value of the firm and the partnership business is determined to be NIL and the party of the first and second parts have no rights as to trade name , goodwill, stock, investments or any assets except for moneys receivable Sfor payable vide clause (2) above. (4) The party of the third part may continue the existing bank account(s) for the limited purpose of dissolution of the firm for realising the firm's book debts, advances, deposits, etc. The said Bank account shall be operated as may be determined mutually by the Parties to this Agreement. (5) Each of the parties hereto does hereby release the other parties hereto from all actions, accounts, claims and demands in relation to the said partnership and from all clauses, covenants, agreement matters and things contained in the Agreement of Partnership entered into by the parties but without prejudice to any rights or remedies of respective partles hereto under any of the provisions herein contained. (6) The parties of the first....
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....t abitheir true and lawful attorney to act, demand recover, receive and due for at his cost any suit or proceedings, to sign, release discharge partnership business and do any needful and necessary that the party of the third part may think fit, just and proper at its sole costs and consequences. The party of the first and second parts shall deliver and cause to be delivered to the party of the third part all books of account, records , letters and other documents In its possession or custody relating to the Partnership so far as they relate to any period preceding 30.905, who shall be responsible to attend to and produce them before any Government authority and the party of the second part hereby declares and confirms that it has not retained in its possession or custody any books, records or other documents considered relevant to the partnership and its business. INWITNESS WHEREOF the Parties hereto have set and subscribed their respective hands the day and year first hereinabove written. SIGNED AND DELIVERED BY THE WITHINNAMED SHRI MOHANLAL GOSRANI,- THE PARTY OF THE FIRST PART IN ....