Custom, Excise & Service Tax Tribunal
M/S. Burgeon Pharmaceuticals Pvt. Ltd vs Cce, Chennai on 19 February, 2008
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
E/PD/431 & 432/2007 and E/640 & 641/2007
(Arising out of Order-in-Appeal No.60 & 61/2007 (M IV) dated 31.5.2007 passed by the Commissioner of Central Excise (Appeals), Chennai)
For approval and signature:
Honble Mr. P. G. Chacko, Member (Judicial)
Honble Mr. P. Karthikeyan, Member (Technical)
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 the Members wish to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
M/s. Burgeon Pharmaceuticals Pvt. Ltd.
M/s. Aeon Pharmaceuticals Pvt. Ltd. Appellants
Vs.
CCE, Chennai Respondent
Appearance Shri G. Natarajan, Advocate for the Appellants Shri B.L. Meena, SDR, for the Respondent CORAM Honble Mr. P. G. Chacko, Member (J) Honble Mr. P. Karthikeyan, Member (T) Date of Hearing: 19.02.2008 Date of Decision: 19.02.2008 Final Order No. ____________ Per P. G. CHACKO After examining the records and hearing both sides, we are of the view that the appeals have to be finally disposed of at this stage. Accordingly, after dispensing with predeposit, we take up the appeals.
2. Appeal No. E/640/2007 filed by M/s. Burgeon Pharmaceuticals (P) Ltd. [M/s. Burgeon for short] is against demand of duty of Rs.1,96,328/- for the period April to October 1998 and Appeal No. E/641/2007 filed by M/s. Aeon Pharmaceuticals (P) Ltd. [M/s. Aeon for short] is against demand of duty of Rs.7,71,398/- for the subsequent period upto March 2002. Both the appeals also challenge penalties imposed under Section 11AC of the Central Excise Act on the respective appellants. Either of the demands of duty is based on the finding that the assessee cleared their products [medicines] after affixing the same with brand names belonging to others. In other words, the impugned demands are consequential to denial of SSI benefit. In their reply to the relevant show-cause notice, M/s. Burgeon claimed that the brand names belonged to them in terms of Assignment Deeds executed in their favour by their marketing agents. On the other hand, the authorities relied on statements of these marketing agents, who held that the brand names belonged to them. In those statements, the marketing agents had stated that they had applied to the Trade Marks Registry for registration of the brand names in their name and that such applications were pending. Confronted by this position, M/s. Burgeon wanted to cross-examine the persons who gave such statements to the department. This request, however, was turned down by the adjudicating authority, which maintained that, as per the latest guidelines contained in Adjudication Manual, permission to cross-examine witnesses could not be granted indiscriminately. According to the adjudicating authority the marketing agents, in their statements had claimed ownership over the brand names were not to be allowed to be cross-examined particularly because the assignment of the brand names, claimed by the assessee, was against a meager fee of Rs.100/-. The assignment deed produced by M/s. Burgeon was not accepted either, which was on the ground that the deed was not registered. In the result, the adjudicating authority held against the assessee. The appeal filed by M/s. Burgeon against the decision did not succeed. The same happened in the case of M/s. Aeon also. They had claimed, in their reply to the relevant show-cause notice, that they had acquired the property in the brand names from M/s. Burgeon by way of assignment deed, along with the latters factory and machineries therein. However, as the claim of the marketing agents that their application for registration of the brand names in their favour were pending with Trade Marks Registry affected M/s. Aeons also as these applications were claimed to be pending during the entire period upto March 2002. M/s. Aeon also wanted to cross-examine the same witnesses, but the request was not acceded to by the adjudicating authority for reasons already noted. At present they also are aggrieved by the decision of the adjudicating authority as affirmed by the Commissioner (Appeals).
3. Learned counsel has submitted that in a case involving more or less similar facts, the appeals were allowed by way of remand directing the adjudicating authority to allow the appellants to cross-examine all the witnesses (Trades) who had, in their statements given to the departmental investigators, given evidence against the appellants claim of ownership over certain brand names. Learned counsel has brought on record a copy of the relevant Final Order Viz. Nos. 714 & 715/2007 dated 14.6.2007 in Appeal Nos. E/352 & 353/2007 [M/s. Cassel Research Laboratories (P) Ltd. Vs. Another Vs. CCE, Chennai]. We have heard learned SDR also, who has reiterated the findings of the adjudicating authority and the appellate authority.
4. On the essential facts pertaining to the rival claims of the assessees and the Revenue, we are convinced of the need to remand these cases to the original authority. Accordingly, the orders passed by the lower authorities are set aside and these cases are directed to the adjudicating authority with a direction to permit the assessees to cross-examine the witnesses [who in their statements given to the investigators claimed that they had applied for registration of the brand names in their favour] who were sought to be cross-examined in the reply to show-cause notices, and to re-adjudicate on the dispute afresh in accordance with law and after giving the parties a reasonable opportunity of being heard.
Both appeals stand allowed by way of remand.
(Dictated and pronounced in open court)
(P. KARTHIKEYAN) (P.G. CHACKO)
Member (T) Member (J)
Rex
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