TMI Blog2011 (4) TMI 1315X X X X Extracts X X X X X X X X Extracts X X X X ..... y of same amount imposed on Shri Davinder Singh, Director of the appellant company under Rule 26 of the Central Excise Rules, 2002 vide order-in-original No. 15/Ldh/09 dated 14/1/10 passed by CCE, Ludhiana and also for stay on recovery thereof till the disposal of the appeals. 2. The facts giving rise to these appeals and stay applications are, in brief, as under. 2.1 M/s Riat Machine Tools Pvt. Ltd. (the appellant company) are engaged in manufacture of Crank Shaft Grinding Machines, and Surface Grinding Machine, chargeable to Central Excise Duty under Chapter 84 of Central Excise Tariff and they cleared the said goods under the brand name RIAT. The appellant company is a private limited company of which Shri Davinder Singh and Shri N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Machinery Manufacturing Co. (MMC), a partnership firm of Shri Davinder Singh and his mother Mrs. Surjit Kaur and M/s Riat Machine Tools so as to remain within the SSI limit. The department was, therefore, of the view that the appellant company was not eligible for SSI exemption during the above-mentioned period in respect of the goods cleared under the brand name RIAT and besides this, the clearances being shows in the name of M/s RMT and M/s MMC were actually the clearances by M/s Riat Machine Tools Pvt. Ltd. It is on this basis that the show cause notice dated 5/5/08 was issued to the appellant company and its Director Shri Davinder Singh, for (a) recovery of Central Excise Duty amounting to ₹ 71,35,832/- under proviso to Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pleaded that since the brand name RIAT belongs to partnership firm owned by Shri Navrattan Singh and his son Shri Davinder Singh, and since the appellant company also had the same two persons as Directors, Shri Navrattan Singh and Shri Davinder Singh being the legal owners of the brand name RIAT were entitled to use the same, that in view of this, the brand name RIAT was the brand name of the appellant company and it cannot be said to be the brand name of another person, that since the appellant company had purchased all the assets of the partnership firm in the year 2002-2003, the right to use the brand name as owners automatically got transferred to the appellant and thus the appellant company has to be treated as legal owner of the bran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 2002 was not called for, that the appellant have a strong prima facie case and in view of this, the requirement of pre-deposit of duty demand, interest and penalty may be waived for hearing of the appeals. 3.2 Shri Virender Choudhary, the learned Departmental Representative, in his submissions opposing the appellant s application for waiver from the requirement of pre-deposit, pleaded that the brand name RIAT being used by the appellant on their goods belonged to another person M/s Riat Machine Tools, a partnership firm, that the brand name RIAT was never sold by M/s Riat Machine Tools to the appellant company, that the assignment deed dated 17/6/2006 from M/s Riat Machine Tools does not mention the name of the appellant com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tools and M/s Machinery Manufacturing company), that penalty under Section 11AC has been rightly imposed on the appellant company, that the appellant company have not been able to establish prima facie case and that in view of this, this is not a case for waiver from the requirement of pre-deposit. 4. We have carefully considered the submissions from both the sides and perused the records. The duty demand of ₹ 70,85,046/- against the appellant has two components. The duty demand of ₹ 11,41,162/- is on the basis of allegation that the appellant during the period of dispute have evaded duty by showing the clearances of the goods manufactured by them in the name of M/s Riat Machine Tools and M/s Machinery Manufacturing Company w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mited company is an entity different from its directions. From the records it appears that the appellant company had never specifically informed the department about the actual ownership of the brand name RIAT being used by them, while this information is crucial for availment of SSI exemption. We are, therefore, of prima facie view that the appellant have not been able to established prima facie case in respect of duty demand of ₹ 59,43,884/-. 6. As regards the duty demand of ₹ 11,41,162/- on going through the record we are of prima facie view that M/s Riat Machine Tools and M/s Machinery Manufacturing Company did not have any machinery to manufacture the goods which are shown to have been cleared by them, which indicates ..... X X X X Extracts X X X X X X X X Extracts X X X X
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