ROYAL SPRINGS Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE matters are posted for stay today, which we grant in view of the fact that Rs. 1.20 lakhs have already been paid and we take up the appeals for disposal with the consent of both the sides. In these 3 appeals arising out of two Orders -in -Appeal passed by the Commissioner (Appeals), New Delhi the issue involved is whether the excisable goods manufactured by M/s. Royal Springs are bearing brand name belonging to M/s. Jay Vijay Spares and consequently the goods are ineligible for Small Scale exemption under notification No. 1/93 -C.E., dated 28 -2 -93.

(2.) SHRI Rampal Singh, learned Advocate, submitted that M/s. Royal Springs under the proprietorship of Shri Ramesh Aggarwal, manufacture Spring Leaves; that on 27 -5 -97 the Central Excise Officers intercepted a tempo loaded with Spring Leaves bearing brand name of Jay Vijay Spares and seized the same; that they also seized Springs from the factory premises of Appellant No. 1 and business premises of Jay Vijay Spares, Appellant No. 3; that Mrs. Krishna Aggarwal, wife of Shri Ramesh Aggarwal is the proprietor of Jay Vijay Stores; that Shri Ramesh Aggarwal looks after day to day work of Jay Vijay Spares as its Manager; that the Additional Commissioner, under Adjudication Order No. 44/99, dated 15 -2 -99, demanded duty from Appellant No. 1, confiscated the goods seized with an option to redeem the same on payment of fine and imposed a penalty of Rs. 1,43,659/ - on Appellant No. 1, Rs. 50,000/ - on Ramesh Aggarwal and Rs. 50,000/ - on Jay Vijay Spares on the ground that the SSI Exemption was availed by them by concealing vital facts and using the brand name of other person. The learned Advocate, further, submitted that the trading firm is owned by Mrs. Krishna Aggarwal who is the wife of Ramesh Aggarwal and that the entire work of the trading firm is looked after by Shri Ramesh Aggarwal as its Manager; that Mrs. Krishna Aggarwal had only invested the money in the trading firm and she is in a sense a sleeping owner of the trading firm; that both Royal Springs and Jay Vijay Spares are practically single outfit owned by the husband and wife team; that accordingly it cannot be said that the trade mark does not belong to Royal Springs. He also mentioned that in any case Jay Vijay Spares has assigned the trade mark by a Deed on 23 -11 -95 to the Appellants No. 1; that omission of mention of existence of the Assignment Deed at the time of search does not lead to the conclusion that it was not executed; that the assignment deed was executed on stamp paper purchased on 3 -10 -95 as per vendor's endorsement on reverse thereto and it was attested by the Notary. He relied upon the decision in the case of Zarafshan Chemicals Pvt. Ltd. v. CCE, Chandigarh, 2000 (124) E.L.T. 256 (Tribunal) wherein it was held that where documentary evidence is produced it is impermissible to dismiss its evidential value on the basis of oral statement to the contrary. It was also held in the same decision that it is for the Department to disprove the claim and to establish that the deed of assignment was executed after the date of seizure and without establishing this assignment deed cannot be brushed aside.

(3.) COUNTERING the arguments Shri R.D. Negi, learned SDR, submitted that the Central Excise Officers after interception of the tempo found the goods belonging to Royal Springs bearing the brand name of another person; that when they visited the factory they found finished goods valued at Rs. 3,06,903/ - affixed with the brand name Jay Vijay and Apex; that both the units are separate units and the mere fact that one is owned by husband and the other is owned by wife cannot be treated one and the same unit; that the fact of existence of any assignment deed was never stated by Shri Ramesh Aggarwal who is proprietor of Royal Springs and works as Manager of Jay Vijay Spares in his various statements dated 27 -5 -97, 7 -7 -97 and 30 -9 -97; that in fact, he tried to explain by saying that he was of the view that only the brand name which is registered under the Trade and Merchandise Act is of any value; that the entire case has been made against them only on the basis of their excisable goods bearing the brand name of another person and if assignment deed has been executed in 1995 it should have been mentioned by them; that further, Jay Vijay Spares had applied for registration of the brand names to the Trade Merchandise Registry on 28 -8 -96. He, further, submitted that it was specifically mentioned in the show cause notice that the relevant facts relating to manufacture and affixing of the brand name of other person were not disclosed by the Appellants to the Department and as such ex - tended period of limitation is invokable in the present matter; that penalty is imposable on M/s. Royal Spring as they had availed exemption in violation of statutory provisions. He relied upon the decision in the case of Upper Do -aba Sugar Mills, v. CCE, Meerut, 1987 (3?) E.L.T. 124 (Tri.). He further mentioned that the goods found in the factory unaccounted are liable for confiscation as held in the case of Autolite India Ltd. v. CCE, Jaipur, 1997 (93) E.L.T. 397 (T) - -1997 (20) RLT 123. Finally he submitted that the penalty has been imposed on Shri Ramesh Aggarwal not only as Proprietor of Royal Springs but also as Manager of Jay Vijay Spares on account of dealing with the goods which were liable for confiscation.