TMI Blog2014 (12) TMI 1220X X X X Extracts X X X X X X X X Extracts X X X X ..... they were not able to prove anything about the procurement of either the finished products or the raw material and related payment details from anyone. Under the circumstances, we are of the considered view that the main appellant is one of the manufacturing unit and has manufactured the goods under dispute, as has been claimed by them even, in the declaration filed by them as also in the various statements of Shri Prakash Nahar who was looking after both the units The learned Counsel for the main appellant has argued that the goods were not seized by the visiting Excise officer. This itself proves that the finished goods did not bear any brand name. We are not convinced with this argument. First of all, the duty is not demanded in respect of the finished goods found during the visit of the officers but on their past declarations. Further, there is no indication whatsoever that the goods were not bearing the brand name. On the contrary, the statement recorded on that very day clearly indicates that the goods of both the units bear the brand name “Deep”. Under the circumstances, we reject the said contention of the appellant. We also note that the fact that the goods manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the proprietress of the said unit is Mrs. Priti Amit Nahar. The second unit, i.e. Deep Metal Works, was earlier a partnership unit with Shri Prakash K. Nahar and his son Shri Amit Nahar as the partners. Later on, the said unit also became a proprietorship concern with Shri Prakash K. Nahar as the proprietor. Mrs. Priti Amit Nahar is the daughter-in-law of Shri Prakash Nahar. Both the units are manufacturing excisable goods, viz. stainless steel cutlery and household articles such as spoons, forks etc. Both the units were availing the small scale industry exemption relating to payment of Excise duty and both the units had claimed that they have not crossed the exemption limit prescribed under SSI Notifications (8/98 and 8/99). For this purpose, both the units had filed declarations on 15-4-1999 as required under the then Rule 174 of the Central Excise Rules, 1944. As per the said declarations, both the units had cleared excisable goods below the exemption limit during 1998-99 and the estimated production of the goods during the year 1999-2000 was again to be below the exemption limit. The said units were visited by the Central Excise officers and it was found that Shri Prakash Nah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being manufactured by Deep Metal Works, duty has to be demanded from Deep Metal Works and not from the main appellant. Admitted position is that both the firms were situated at one and the same factory premises. Further, the Central Excise officers verified the stock of the finished goods and nothing was seized and drew panchnama of physical verification of the goods on 21-8-2009. Annexure 1 to the statement dated 21-9-1999 of Shri Prakash Nahar lists out the goods available at the time of visit but does not mention that the said goods were bearing the brand name Deep or not. Under the circumstances, it has to be presumed that the goods were not bearing the brand name Deep . The learned Counsel also took us through the statement of Shri Prakash Nahar to prove the point that both the units are located in the same premises sharing the common facilities and tool room as well as machinery and in view of the said statement, the learned Counsel argued that there is no separate and independent factory of M/s. Deep Engineering Works and hence the goods were manufactured in the factory of M/s. Deep Metal Works. He also stated that Shri Prakash Nahar was looking after the entire business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the copy of the order-in-original dated 21-10-2004 served upon Deep Engineering Works was not signed by the adjudicating authority and hence the whole adjudication proceedings are illegal. 3. The learned Counsel has quoted the following judgments :- (i) Minimax Industries - 2011 (269) E.L.T. 166 (Del.); (ii) Laxmi Industries - 2013 (298) E.L.T. 435 (T); (iii) Elex Knitting Machinery Co. - 2003 (158) E.L.T. 499 (T); (iv) Elex Knitting Machinery Co. - 2010 (258) E.L.T. A48 (P H); (v) Elex Knitting Machinery Co. - 2012 (283) E.L.T. A18 (S.C.); (vi) Metlex (I) P. Ltd. - 2004 (165) E.L.T. 129 (S.C.); (vii) Castrol India Ltd. - 2008 (222) E.L.T. 408 (T); (viii) M.N. Shah - 2008 (232) E.L.T. 110 (T). 4. The learned Counsel on behalf of the appellant, Shri Bharat N. Shah, stated that he was never the manager of Deep Engineering Works and, therefore, whatever allegations have been made are incorrect and there are no grounds for imposition of penalty under Rule 209A. The learned Counsel on behalf of Shri Prakash Nahar, proprietor of Deep Metal Works, stated that he has given the statement as per the wishes of the Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given to DEW . In statement dated 19-8-2002 of Shri Prakash Nahar, Partner of Deep Metal Products (pg 75 of appeal), it is stated that : - I was one of the partner of M/s. Deep Metal Products and I was responsible for the day to day working of the same. I was also looking after day to day work of M/s. Deep Engineering Works which was owned by our family member Mrs. Preeti Nahar . The learned AR also took us through the statement dated 4-9-2001 of Shri Bharat Shah, wherein it has been deposed that the mark Deep originally belonged to Deep Metal Works, a partnership concern, and Deep Metal Works has allowed Deep Engineering Works to use their mark and also that he submitted photocopy of the NOC issued by Deep Metal Works on the stamp paper. The learned AR also argued that it has been clearly stated that they are embossing the brand name Deep in all the products and there is no evidence whatsoever that the said brand name was not embossed on the goods supplied to Air India and Indian Airlines and no evidence whatsoever has been produced by the appellant before the adjudicating authority or the first appellate authority or even before this Tribunal and in the absence of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the next contention relating to the brand name, we find it is very clear from the statement of Shri Prakash Nahar that the said brand name belongs to Deep Metal Works (a partnership firm) and that the goods manufactured by Deep Engineering Works also bear the same brand name. Further, Deep Engineering Works was permitted to use the brand name of Deep Metal Works. The appellants have not been able to produce any evidence whatsoever to support their contention that the goods under dispute did not bear the brand name Deep . Thus in our considered view, the main appellant fails on both the grounds, i.e. the brand name belongs to other person as also that the goods cleared by them did have the said brand name. The learned Counsel for the main appellant has argued that the goods were not seized by the visiting Excise officer. This itself proves that the finished goods did not bear any brand name. We are not convinced with this argument. First of all, the duty is not demanded in respect of the finished goods found during the visit of the officers but on their past declarations. Further, there is no indication whatsoever that the goods were not bearing the brand name. On the contrary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a family concern like in the present case, generally the same person looks after various units and there are no separate payments or designation for various persons looking after. For example, in this very case even though Shri Prakash Nahar is undisputedly was looking after all the works relating to Deep Engineering Works but has no legal locus standi or any designation like manager etc. It appears to us that Shri Bharat Shah was also a person who was assisting Shri Prakash Nahar in managing the day-to-day affairs of the two firms and therefore this objection is irrelevant. It is not clear why he has stated that he was the manager. In any case, in our view, the designation manager or manager of Deep Engineering Works is not relevant to the issue but the fact remains that Shri Bharat Shah was knowing all the details and that is how he could tell all the details in his statement. Not only this, he also seems to have produced a copy of the NOC given by Deep Metal Works to Deep Engineering Works. 9. Another submission made by the Counsel for the main appellant is that the order-in-original is not signed by the adjudicating authority. We have gone through the copy of the adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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