MAGNUM AUTOMOTIVE INDUSTRIES Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) THE issue involved in these 3 appeals, arising out of a common Order -in -Original No. 13/2001, dated 24 -12 -2001, passed by the Commissioner of Central Excise, is whether the Appellants M/s. Magnam Automotive Industries are using the brand name of another person and consequently not eligible for the benefit of Notification No. 1/93 -CE., dated 28 -2 -93 and whether excisable goods were cleared by them clandestinely without payment of duty.

(2.) SHRI A.R. Madhav Rao, learned Advocate, submitted that the Appellant -company manufacture various automotive products, meant for four wheelers and two wheelers; that the products manufactured by them are brake shoes, Clutch plates, Disk plate pads, and Clutch weights; that they are marketing the products under their brand name 'Magnum' and they are putting of the particular logo on the casting only for the purpose of identification of the brake shoes since brake shoes, for Hero Honda Mobike and Kinetic Honda Scooter and also TVS Mobike, Kavasaki Bajaj 4 stroke mobike are identical in appearance; that if the identifying marks are not put it could lead to danger to the rider since brake shoes are otherwise of different specifications which could not be recognized visually; that as such there is no use of brand name of another person as it was only for the identification by the mechanics as to which brake shoe is to be used for which vehicle. He emphasized that in the market brake shoes are marketed with their own brand name and on the packing there is only a sticker and there is no trade name except 'Magnum'; that apart from the appellants a large number of small -scale manufacturers are also putting identification mark along with their brand name on the castings of the brake shoes for identification purpose; that accordingly it cannot be said that they were using the brand name of another person. He submitted that Hero Honda are not manufacturing brake shoes and as such the mischief of Para 4 of Notification No. 1/93 regarding use of brand name of another person is not attracted. He relied upon the decision of the Larger Bench in the case of CCE, Chandigarh v. Fine Industries, 2002 (146) E.L.T. 53 (Tribunal) wherein it has been held that "to attract the mischief of Para 4, the specified goods manufactured by SSI unit should have been cleared under the brand name of another person who use the same brand name on identical goods." Reliance has also been placed on the decision in the case of Vijohn Beauty Tech v. CCE, New Delhi, 2002 (143) E.L.T. 148 (T) = 2002 (51) RLT 800 wherein the benefit of SSI notification was extended to the Appellants as the products manufactured by them were bearing their own brand name and it has been held that using word 'V' on caps would not amount to use of brand name of another person. He also mentioned that the casting manufacturer for the brake shoes has given an Affidavit categorically stating that the brake shoes are being supplied by him apart from the marking for the 4 parties, also unmarked castings or with Magnam name on them.

(3.) THE learned Advocate, further, submitted that the Department has also made out a case that the Appellants had suppressed the value of their production and made sales to various buyers as per the documents seized from them; that their factory is incapable of manufacturing the volumes which are reflected in the so -called documents which were, according to them, projections and nothing more; that no evidence has been shown by the department that there was any raw material procurement to manufacture such volumes, nor any evidence of actual purchase by any one of these volume of sales, etc.; that in other words the Department, has relied upon only on the documents and no other evidence is on record. He submitted that the Planning Chart, relied upon by the Department, is only a forecast for a period of 5 years done on prescribed annual performance; that unfortunately such planning did not materialize which is evident from the fact that there was no expansion of the unit and even today the unit continues with the same infrastructure as it had at the time of inception; that therefore, planning details of a unit cannot be construed as actual performance unless it is proved that such planning has materialized or has taken place. He also mentioned that the Department has also relied upon the note pads of supervisors and slips of various dates; that the details contained in the note pads relate to inquiries and it is to be seen whether there was actual stock on the day and dispatch of material had taken place; that further, supplies against inquiries are subject to confirmation by the customers. He also mentioned that the Revenue has relied upon the statement dated 5 -6 -99 of Shri S.K. Singhal, Partner, though he has retracted the same on 7 -6 -99 itself.