TMI Blog2010 (3) TMI 556X X X X Extracts X X X X X X X X Extracts X X X X ..... .S.V. Murthy, Member (T) and Ashok Jindal, Member (J) Shri Anand Nainavati, Advocate, for the Appellant. Shri Sameer Chitkara, SDR, for the Respondent. [Order per : B.S.V. Murthy, Member (T)]. - M/s. Sudhir Gensets, the first appellant is engaged in the manufacture of Generator Sets. Shri Sudhir Sheth, second appellant is the Managing Director and Shri Vinod Sheth, the third appellant is the General Manager. Duty demand of Rs. 4,15,650/- for the financial year 1997-98 and 1998-99 has been confirmed by the lower authorities after following the procedure of issue of show cause notice, adjudication and appellate proceedings against the appellant No. 1 along with interest as applicable. Penalty equal to duty has also been impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted - 2004 (171) E.L.T. 59 (Tri. - Mumbai). Further, he also relies upon the decision of the Hon'ble Supreme Court in the case of Bhalla Enterprises - 2004 (173) E.L.T. 225 (Supreme Court) holding that SSI exemption cannot be denied when a brand name is utilized by different persons on a common basis. He submits that Sudhir is common name and there was no objection by Sudhir Engineering Company for the use of name Sudhir by them and decision of the Hon'ble Supreme Court is clearly applicable to their case. Further, he also submits that if his submissions on merits are not accepted, the issue may be remanded to Commissioner (Appeals) since Commissioner (Appeals) failed to record in his findings of their submissions with regard to issue of ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name which belonged to Sudhir Engineering Company. He also submits that both the lower authorities have dealt with the issue and the same submissions are being made by the appellants now. He drew our attention to Para 7 and 8 of the order of Commissioner (Appeals) wherein Commissioner (Appeals) has referred to the fact that Superintendent had sought for clarification regarding use of brand name belonging to others and on that ground he held that he did not find any justification to interfere with the penalty imposed on first appellant. On this fact the Commissioner (Appeals) upheld the demand as well as penalties by upholding suppression of facts and mis-declaration also. Therefore, he submits that appeals deserve to be rejected. Further, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d therefore it cannot be considered as brand name at all and it cannot be connected to the manufacturer. However, the liability to prove so is on the appellants. In this case Sudhir Engineering Company was manufacturing the same product from 1995 and subsequently first appellant started manufacturing the same product with the same brand name and even the management was also the same. Intention behind using the same name appears to capitalize on popularity of name "Sudhir" already available in the market. Therefore, we do not find that appellants can derive any support from this decision. Further, even when the Superintendent wrote a letter to appellant, the appellant gave reply stating that brand name is owned by them, which was contrary to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though it would have been proper if detailed discussions would have been recorded and conclusion arrived at. 5. As regards penalty, since we have upheld the Suppression/Mis-declaration on the part of the appellants, penalty under Section 11AC on the first appellant has to be upheld. However, we note that the provisions of Section 11AC has not been explained and option to pay duty with interest and 25% of duty as penalty within 30 days to get reduction of 75% in the penalty under Section 11AC, has not been given by both the lower authorities. In view of the decision of this Tribunal in the case of M/s. Swati Chemicals Industries Others vide Order Nos. A/1556-1576/WZB/AHD/2009 dated 21-7-2009 [2009 (248) E.L.T. 421 (Tribunal)]; such optio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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