Customs, Excise and Gold Tribunal - Bangalore
Sukumar Soft Drinks vs The Commissioner Of Central Excise on 26 June, 2006
Equivalent citations: 2006(111)ECC593, 2006ECR593(TRI.-BANGALORE)
ORDER S.L. Peeran, Member (J)
1. Both these appeals raises common question of law and facts and hence, they are taken up together for disposal as per law.
(i) E/521/2005
2. The Appeal E/521/2005 arises from Order-in-Appeal No. 106/2005 CE dated 31.3.2005 passed by the Commissioner of Central Excise (Appeals), Mangalore. The allegation against the appellant is that they are proprietary unit having Central Excise Registration and were manufacturers of aerated waters falling under Chapter heading 22 of the Schedule to the CET Act, 1985.
(a) The said goods were cleared with the brand name "TORINO", "TEACHERS". It was found that these brand names were registered trade name of M/s. Bangalore Soft Drinks Pvt. Ltd. and hence they were not eligible for the benefit of the SSI Exemption Notification No. 16/97 CE dated 1.4.1997.
(b) Besides this allegation, it was found that they had also clandestinely removed goods without paying duty and the allegation to support this ground was based on the shortage of crown corks. The defence taken that they were damages to the extent of 35% was not accepted.
(c) The third allegation is with regard to valuation of the goods which had to be adopted in terms of Section 4A of the CE Act. There was excess stock, when the officers visited their office on 24.02.98 hence, on that ground the goods were seized and redemption fine has been imposed.
(a) Brand Name
3. It is the contention of the appellants that although the brand name was registered in the names of M/s. Bangalore Soft Drinks Pvt. Ltd. they were not the users and hence, the benefit cannot be denied to them. On this ground, the learned SDR contended that the issue is covered against the appellants in terms of the Apex Court judgment rendered in the case of CCE v. Grasim Industries Ltd. as wherein it has been held that when the trade name of another person has been used, then the assessee is not eligible for the benefit of SSI Exemption.
4. On our careful consideration, we notice that this issue of the claim of benefit of SSI exemption has been decided against the assessee in terms of the above noted Apex Court judgment. Hence, the assessee is not eligible for the benefit of the SSI Exemption. This point is decided against the assessee.
(b) Clandestine Removal of Goods
5. Insofar as the allegation pertaining to clandestine removal of goods are concerned based on the shortage of crown corks. It is seen that the learned Counsel submitted that there is no evidence of clearance of goods clandestinely. There were no removals or evidence of any person purchasing it including the evidence of transporters bill. There is no evidence of flow back of money. He also relied on large number of judgments to contend that demands cannot be confirmed in absence of any evidence.
6. The learned SDR did not seriously contest this issue.
7. On a careful consideration, we are of the considered opinion that the demands on clandestine removal of goods solely based on shortages of crown corks cannot be held in view of the fact that there is no collaborative evidence in favour of Revenue. There is no admission of any clearances made clandestinely and hence, in view of the large number of settled judgments on this ground, the demands raised on the allegation of clandestine removal is set aside.
(c) Applicability of Section 4A
8. As regards the allegation of applicability of Section 4A is concerned, the learned Counsel submitted that the issue is also decided in their favour by the judgments of Tribunal rendered in the case of Hindustan Appliances v. CCE as reports in wherein revision of prices solely on the ground of revised stickers having been affixed has been set aside. The learned Counsel submits that in this case also it was the fact that the assesses had merely fixed some stickers on the crown cork and that by, itself cannot be the basis for revision of price. It is submitted that there is no proof of appellant having collected more money, then what is marked as MRP. He further relied on the ruling rendered in the case of Accra Pac (India) Pvt. Ltd. v. CCE, Daman as wherein it has been held that since the appellants retained only lower MRP that by itself will not be a ground to revise the valuation.
9. The learned SDR did not seriously contest this issue.
10. On a careful consideration, we are of the considered opinion that the judgment cited by the appellant clearly supports their case. The MRP values shown on the stickers cannot be the ground to enhance the value under Section 4A as held in Hindustan Appliances (supra) and in the case of Accra Pac (India) Limited (supra) , therefore, the revision of Value on this ground is set aside.
(d) Non-entry in the RG1 Register
11. The learned Counsel submitted that the goods which were ready for removal but entries having not been made in the RG1 Register is no ground for confiscation and imposition of penalty and fine and hence, he prayed for setting aside the redemption fine imposed.
12. The learned SDR defended the order and contended that the goods had already been made ready for despatch and hence, non-entry in the RG1 Register is an offence and its confiscation and imposition of fine is justified.
13. On a careful consideration, we agree with learned SDR that the order of confiscation of goods which had been ready for pack for removal and its non-entry in the RG1 Register is liable for confiscation and imposition of fine and penalty. The order on this portion is affirmed.
14. In sum, the impugned order is modified to the extend that:
(a) The benefit of the SSI Exemption Notification is denied.
(b) Demands made solely on the shortage of crown corks and allegation that there has been clandestine removal of goods is set aside.
(c) Valuation based on Section 4A is set aside.
(d) The Confiscation of goods which were ready for despatch and entries having not been made in the RG1 Register is affirmed by confirming the redemption fine imposed.
The matter is remanded to the Original Authority to recompute the duty and appropriate penalty on the basis of the order passed.
(ii) E/541/2005
15. The Appeal No. E/541/2005 arises from Order-in-Appeal No. 87/2005 dated 28.3.2005 which denies the benefit of SSI Notification on the ground that the brand name is owned by M/s. Bangalore Soft Drinks. As in the above appeal, we have already decided the issue against the assessee and therefore, there is no merit in this appeal and the same is rejected.
16. The appeals are disposed of in the above terms.
(Operative portion of this Order was pronounced in open court on conclusion of hearing)