Customs, Excise and Gold Tribunal - Mumbai
Jaipan Domestic Appliances Ltd., J.N. ... vs Commissioner Of Central Excise, ... on 12 April, 2001
ORDER
G.N. Srinivasan, Member(Judicial)
1. These bunch of applications have been filed for waiver of duty of Rs. 22,47,136 demanded against the assessee, J.S. Industries, appellant in Appeal E/2332/00 and imposition of penalty of various sums on all the appellants.
2. In this case the facts appear to be that J.S. Industries at Mumbai produced a product what is known as "Rot maker " and send the same to Jaipan Domestic Appliances Ltd. (Jaipan for short), Silvassa bearing a mark Asian Sky Shop. The recipient at Silvassa, who is also an appellant before us in Appeal E/2120/00 sent the same to its shop at Asian Sky Shop at Pondicherry. The case of the department is that the product has a mark on it therefore the assessee was not entitled to notification 1/93. At the time of investigation, that is sometime in September 1997, the assessee had paid a sum of Rs. 12 lakhs towards duly. It is the contention of the assessee that the term "Asian Sky Shop" is not a trade mark and affixture of such a mark will not hit the provisions of notification 1/93. The contention of the department is that they were unable to have correlation between what was produced and what was sent to Silvassa and what was actually sold at Pondicherry, as there was no appreciable evidence to support the case of the assessee appellant before us. A show cause notice dated 20.1.98 was given. Reply was filled.The matter was heard by the adjudicating authority namely Commissioner of Central Excise, Mumbai V. She by the impugned order rejected the contentions raised by the assessee,the appellant before us and imposed the duty as well as the penalties.
3. Mr. V. Sridharan, Mr. Nambirajan along with Mr. Jain, CA appeared for appellant. Mr. George appeared for department. Mr. Sridharan submitted that the mark in this case namely Asian Sky Shop is not a mark at all. He also stated that the trade mark Jaipan has been assigned in favour of the appellant by document dated 18.10.96. He states that in the very nature of things, when the department ils charging the appellant of having the mark how could there be not any correlation between the goods produced and the goods finally sold at Pondicherry. This is contradiction in terms, he argues. He also pleads before us that the fact remains out of Rs. 22 lakhs, Rs. 12 lakhs have been paid by the J.S. Industries, the appellant.He states the other appellant Jaipan has already paid Rs. 5 lakhs towards duty. Therefore, for purpose of hearing the entire appeal he pleads waiver of the reminder of the duty and penalty imposed. Mr. J.M. George invited our attention to internal page 19 of the order specifically to the last paragraph thereof. He states if it is argued that Jaipan has paid the duty, it is for Jaipan to ask for refund. Therefore, the case is not so clear a put forth by the Ld.Counsel for the appellants. He also reiterates the impugned order.
4. We have considered the rival submission. The understand the effect of assignment deed in the case, as also the correlation of the invoice with the goods and also the ground taken by the department it requires appreciation of the entire case which can be done at the final hearing of the matter. The fact remains that it is out of the duty demand of Rs. 22 lakhs approx. a sum of Rs. 17 lakhs has been received by the department. We therefore waive pre-deposit of the remaining sum of duly as well as the penalty and stay of their recovery thereof during the pendency of the appeals.