Custom, Excise & Service Tax Tribunal
C.C.E., Indore vs M/S Kuber Industries on 16 July, 2009
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R.K.Puram, New Delhi COURT-I Date of hearing/decision:16.7.2009 Central Excise Appeal No.3588 of 2004 Arising out of the order in appeal No.449-450-CE/IND/APPL-II/03 dated 15.9.03 passed by the Commissioner (Appeals-II), Customs & Central Excise, Indore. For Approval and Signature: Honble Shri Justice R.M.S. Khandeparkar, President Honble Shri M. Veeraiyan, Member (Technical) 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of 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 C.C.E., Indore Appellant Vs. M/s Kuber Industries Respondent
Central Excise Appeal No.3589 of 2004 Arising out of the order in appeal No.449-450-CE/IND/APPL-II/03 dated 15.9.03 passed by the Commissioner (Appeals-II), Customs & Central Excise, Indore.
C.C.E., Indore Appellant Vs. Shri Jagdish Chandra Soni Respondent (Partner) Appearance:
Shri P.K. Singh, Authorized Departmental Representative (DR) for the Revenue and none for the respondents Coram: Honble Shri Justice R.M.S. Khandeparkar, President Honble Shri M. Veeraiyan, Member (Technical) Oral Order No.___________________ Per M. Veeraiyan:
These two appeals by the Department are arising out of the same impugned order of the Commissioner (Appeals).
2. Heard the learned SDR. None appeared for the respondents. Perused the records.
3. The respondents are engaged in the manufacture of ginning machines and its spares and the Department issued show cause notice alleging that the said machines were cleared with the brand name of third parties based on the statement of Shri Sanjay Choudhary, Manager of the firm. Original authority confirmed the demand of Rs.4,46,706/-along with interest and imposed equal amount as penalty on the firm and also a sum of Rs.2 lakhs on Shri Jagdish Chandra Soni, partner of the firm. Commissioner (Appeals) set aside the order of the original authority and allowed the appeal of the firm as well as the appeal of Shri Jagdish Chandra Soni. Hence the Department is in appeal.
4. Learned SDR reiterates the finding and reasoning given in the order of the original authority and the grounds of appeal.
5. We have carefully considered the submissions. The Commissioner (Appeals) has given a clear finding that it was a case of mere affixing of brand name of others in the letter head and invoices which cannot held to be clearance of goods with the brand name of others. Against this factual finding, no evidence has been cited by the Revenue. While the conduct of the respondents in affixing the brand name in letter head and mentioning the brand name in the invoices may raise doubts, the same may not be considered as evidence enough to hold that the respondents have cleared the goods with the brand name of third parties. Under these circumstances, we do not find any valid grounds to interfere with the finding and reasoning adopted by the Commissioner (Appeals).
6. In the light of the above, we reject the appeals of the Department.
(Justice R.M.S. Khandeparkar) President (M. Veeraiyan) Member (Technical) scd/ 3