TaxTMI 
TaxTMI 
2022 (12) TMI 1463
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....lty 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 on the basis of MRP/retail sale price of the goods. Taking the value of t....
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....eard 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 Shri Mohanlal G. Gosrani and Smt. Hemlata M. Gosrani retired from the partnership and Shri Chandrakant Gosrani continued the business as proprietor in the same name and style as was continuing earlier. A separate affidavit dated 30....
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....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 and the non-sustainability of the demand on merit itself, it is not liable for any penalty and the penalty of Rs. 81,08,341/- imposed vide the impugned order on them under Section 11AC of the Act and/or Rule 25 of the Central Excise Rules, 2002 cannot be sustained and is liable to be set aside. Appellant is also not liable for the payment of....
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.... 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 17.10.2011 for the purpose of the notification number 8/2003- CE dated 01.03.2003. 29. The noticee, in their defense, have pressed the affidavit dated 30.11.2005, made by Shri Mohanlal Gosar Gosrani and Shrimati Hemlata Mansukhlal Gosrani and Shri Chandrakant Gosar Gosrani as Karta of Chandrakant G Gosrani (HUF). This is at the Exhibit 11 to the show cause. Thereunder, Shri Mohanlal Gosar Gosra....
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....e 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 Health Care, supra, the basic proposition, made in the subject notice, that the noticee during the relevant period had made clearances of the excisable goods, which bore the brand name of another. Consequently, in the face of the prescription stated in the notification number 8/ 2003-CE dated 01.03.2003 these excisable goods ought to have been cleared by the noticee only on payment of the payable amounts of duty of excise. 36. Having f....
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....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, India, do hereby solemnly affirm declare as follows: That the aforesaid trade mark No.622155 i.e. KALKI label is registered under Class -09, and it is registered in our name. 2. That vide deed of assignment dated 6th day of May, 2011, we have assigned the said trade mark in favour of Mr. CHANDRAKANT GOSAR GOSRANI (karta of Chandrakant Gosrani H.U.F.) as a sole proprietor of M/s. Kalki Industries, and we have received our consideration thereof. 3. That the said registered mark has been assigned a....
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....r 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 agreement stipulates that after the date of completion, purchaser would be entitled to carry on the business under the name and style of M/s. ArcoWhitney and to refer themselves as vendor's, successor in that business and will have availed full liberty to run the said business in the manner as may be decided by the purchaser. As such, it is clear that entire assets of the running units along with trademark were purchased by the appellant. In such case it cannot be said that the same belongs to the seller. Use of the same will not disentitle the appellant from the....
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....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 limit and hence the question of distributing the exemption may not arise. If one firm or individual owns several factories, he or it gets exemption only in respect of one individual owns several factories, he or it gets exemption only in respect of one lot and the manufacturer being only one entity there will be no question of distributing the exemption. (iv) Whether or not in the expression 'by or on behalf of a manufacturer' the expression 'from one or more factories' is added, the effect would be the same if the manufacturer is also the same. The expression 'one or more factories' only further clarifies ....