COMMISSIONER OF CENTRAL EXCISE Vs. JEPIKA PAINTS

JUDGEMENT

(1.) The issue involved in this appeal, filed by Revenue is whether the Respondents, M/s. Jepika Paints, were removing the excisable goods manufactured by them, bearing the brand name belonging to M/s. Jepika Chemicals Industries (P) Ltd.

(2.) Shri Vikas Kumar, learned SDR, mentioned that the Central Excise Officers on 5 -10 -1995 visited the factory premises of the Respondents who manufacture oil bound distemper, Synthetic enamel paint, etc. which are cleared under the brand name "JEPIKA"; that Shri Bharat Bhushan Gupta, Proprietor of M/s. Jepika Paints, deposed in his statement dated 5 -10 -1998 that brand name "JEPIKA" is registered in the name of M/s. Jepika Chemicals Industries Pvt. Ltd. and that from the beginning i.e. 8 -5 -1993 he had manufactured Jepika brand oil bound distemper, etc.; that only subsequently after more than five months, in his statement dated 13 -3 -1996, Shri B.B. Gupta claimed that "JEPIKA" Brand had been sold to him by Sale Deed 10 -1 -1994 for a consideration of Rs. 21,000/ -; that the Additional Commissioner, under Order -in -Original Nos. 132 -136/2001, dated 31 -1 -2001, has confirmed the demand of duty and imposed penalty besides confiscating the seized goods with an option to redeem the same on payment of redemption fine by disallowing the benefit of small scale exemption Notification, the Respondent had not submitted any proof to show that the brand name had been registered/assigned by the Registrar in his name and that the application had been submitted to the Registrar only on 19 -4 -1996. He also mentioned that the Commissioner (Appeals) under the impugned Order has allowed the benefit of small scale exemption Notification on the ground that sale of brand name had taken place in January, 1994 and substantial benefit should not be denied for minor infractions and the bar of limitation prescribed under Section 41 of the Trade and Merchandise Marks Act, 1958 is not invocable.

(3.) The learned SDR submitted that if the Sale Deed had been executed in January, 1994, why was this fact not disclosed by Shri B.B. Gupta in his statement dated 5 -10 -1995; that further he had submitted the application for registration of deed only on 19 -4 -1996 that is after the search of his factory premises and after more than two years of sale deed said to have been executed; that Sale Deed was not in existence and it has been executed subsequently with an intent to save the respondent from liability to pay Central Excise duty. He, therefore, contended that the Respondent is not eligible for the benefit of small scale exemption Notification and relied upon the decision in the case of Prince Valves Industry v. CCE, Chandigarh - 2000 (121) E.L.T. 100 (T) wherein it has been held by the Tribunal that a brand name registered in the name of another partnership firm which stood dissolved cannot be used by the Appellants. Reliance has also been placed on the decision in the case of Chhaganlal Sharma v. CCE, Indore - 2003 (160) E.L.T. 489 (T) wherein it has been held by the Tribunal that the sale deed executed in 1997 is nothing but a device to evade the payment of Central Excise duty. He also mentioned that the appeal as well as Review petition filed by the assessee have been dismissed by the Supreme Court as reported in 2004 (167) E.L.T. A66 (S.C.) and 2004 (169) E.L.T. A93 (S.C).