Custom, Excise & Service Tax Tribunal
Shri Guru Nanak Dev Engineers vs Commissioner Of Central Excise on 23 September, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Excise Appeal No. 1403-1404 of 2012 - EX[DB]
Excise Stay Application No. 1787-1788 of 2012 - EX[DB]
[Arising out of Order-In-original No. 09/LDH/ 2012 dated 7.3.2012 passed by Commissioner of Central Excise, Ludhiana, Punjab]
For approval and signature:
Honble Ms. Archana Wadhwa, Judicial Member
Honble Mr. Manmohan Singh, Technical Member
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
Seen
4
Whether Order is to be circulated to the Departmental authorities?
yes
Shri Guru Nanak Dev Engineers Appellants
M/s. Gobind Expeller Company Pvt. Ltd.
Vs.
Commissioner of Central Excise, Respondent
Ludhiana Appearance:
Shri K.K. Anand, Advocate for the Appellants Ms. Shweta Bector, DR for the Respondent CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial) Hon'ble Mr. Manmohan Singh, Member (Technical) Date of Hearing/decision : 23.09.2013 ORDER NO. FO/ 57761-57762 /2013-EX(BR) Per Archana Wadhwa (for the Bench):
Vide stay order No. 1775-1776/2012 Ex(Br) dated 23.10.12, the appellants were directed to deposit 50% of the duties confirmed against them by the lower authorities on the ground that the applicants have enjoyed the SSI exemption notification while using the brand name of other persons. It is seen that the brand name belong to the father of one of proprietor of Sh Guru Nanak Dev Engineers, Shri Jagtar Singh. Shri Jagtar Singh was one of the Directors in the second concern M/s. Gobind Expeller Company Pvt. Ltd. It is seen that while deciding the stay petition filed by the two applicants, the Tribunal took into consideration the appellants submissions that there was a memo of understanding between Shri Jagtar Singh and Shri Gurpreet Singh, proprietor of Shri Guru Nanak Dev Engineers i.e. his sons as also between him and the other Directors of M/s. Gobind Expeller Company Pvt. Ltd. However, inasmuch as said memo of understanding was placed before the Tribunal for the first time, and was not placed before the adjudicating officer, the Tribunal took the same into consideration and for the purpose of stay, directed both the applicants to deposit a part amount.
2. The stay order was challenged by the applicant before the Honble High Court of Punjab and High Court, who apart from taking note of the fact that in another identical stay matter, the Tribunal had granted unconditional stay also took into consideration the memo of understanding and observed that mere failure to place the same before the adjudicating officer, may not be a reason for the Tribunal for not considering the same. Accordingly, the matter stand remanded by the Honble High Court.
3. We have heard learned advocate Shri K K Anand, for the appellant who has raised various arguments and has submitted that in terms of MOU, both the appellants were entitled to use the brand name. Apart from this, he submitted that Shri Jagtar Singh, brand name owner was himself Director of M/s. Gobind Expeller Company Pvt. Ltd. and as such, the said company was entitled to use the brand name. He also submitted that M/s. Gobind Expeller Company Pvt. Ltd. is located in rural area and they have produced certificates from Tehsildar and Patwari to that extent. The certificate stand rejected by the Commissioner on the sole ground that said area is fully developed and there are lot of manufacturing units in the same. He submits that condition of small scale exemption notification is not relatable to the developed or undeveloped rural area. If the factory is located in rural area, they are entitled to get the benefit of exemption notification irrespective of the fact that same may be developed industrial area.
4. We, after hearing both the sides are of the view that the appellants main argument is based upon the MOU entered into between Shri Jagtar Singh and his son Shri Gurpreet Singh, proprietor of Shri Guru Nanak Dev Engineers and between M/s. Gobind Expeller Company Pvt. Ltd. Admittedly, the said MOU was not placed by the appellant before the adjudicating officer. The Tribunals observation in the earlier stay order that since the said MOU was not placed before the Commissioner and as such, cannot be considered at the first appellate stage, has not found favour by the Honble High Court who has set aside the stay order and remanded the matter. Inasmuch as the MOU was not considered as was not placed before the adjudicating authority and his views on the same are not available, we deem it fit to set aside the order of the Commissioner in both the cases and remand the matter to him for fresh decision after examining the authenticity and veracity of the said MOU. We also make it clear that we are not expressing any opinion on the merits of the case and appellants are free to argue the same before the adjudicating authorities in remand proceedings.
5. Stay petitions as also appeals get disposed of in the above manner.
(Dictated and pronounced in the open court)
( Archana Wadhwa ) Member(Judicial)
(Manmohan Singh) Member(Technical)
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