9911796707
TMI Blog2017 (3) TMI 1205X X X X Extracts X X X X X X X X Extracts X X X X ..... Auto Accessories, a proprietary concern owned by Shri Vinod Kumar Arora are engaged in trading of "AVON" branded two wheeler accessories like side box, helmets, locks, side bags, leg guards, etc. Certain investigations were conducted by the officers of central excise in various premises. On completion of the inquiry, proceedings were initiated against M/s.Veekay Auto Accessories and various others. The gist of the allegation against these parties is that M/s. Veekay Auto Accessories floated various fictitious firms and got the "AVON" brand items manufactured and thereby evaded central excise duty. It was further alleged that the seized goods valued at Rs. 45,51,129/- in the premises of M/s.Veekay Auto Accessories are liable to be confiscat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder. Personal hearing was conducted on 19.09.2007, whereas the order was passed on 28.01.2009, after a delay of over 16 months. On these two grounds alone, the order is liable to be set aside. 3. Ld. Counsel further submitted that the impugned order records contradictory observation and findings. The appellant is only a trader of goods in question, which were manufactured by the independent manufacturer. It is clear from the proceedings that individual manufacturers did file their defence and the same was examined by the Original Authority. These manufacturers even if they acted as job workers, the liability for central excise duty, if any, is upon them only. The Original Authority has concluded that the demand has to be against respectiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not manufacture any goods with brand name. The finished goods available in their premises during the inquiry by the officers had no brand name. The whole demand is based on the statement of proprietor, who is not much educated. There is no evidence on record to indicate that they manufactured excisable products with the brand name of "AVON" belonging to M/s.Veekay Auto Accessories. 6. Ld. Counsel appearing for M/s.Vibhor Enterprises submitted that they are a very small scale manufacturer and were supplying the goods to M/s. Veekay Auto Accessories and till October, 2005 with no brand was affixed. They have got the die for affixing the brand name in September, 2005 and the clearance of September is without brand name and the same should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, the Original Authority ordered appropriation of the amount deposited by M/s. Veekay Auto Accessories against the demands confirmed against these individual units. If these are fictitious firms, the question of confirming demand against them does not arise. The actual manufacturer has to be identified and the duty has to be confirmed on such persons. If the actual manufacturer is found to be M/s.Veekay Auto Accessories, then the duty demand also has to be held against such manufacturer. We find the dual approach of holding individual units as liable to central excise duty and at the same time holding these units as fictitious firms created by Shri V.K. Arora, as held by Original Authority is legally unsustainable. Apparently, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sted in the impugned order. Then, it follows that M/s.Veekay Auto Accessories with owners of brand name are only trading in these items and have no duty liability as a manufacturer. No duty has been confirmed against them. In such situation, the goods lying in the trader premises is not liable for confiscation. Even otherwise, sub-rule (2) of Rule 25 makes it very clear that no order of confiscation shall be issued by the central excise officers without following the principles of natural justice. Not allowing the cross examination of the persons whose statements were relied upon and issuing the impugned order after almost 16 months of conclusion of hearing clearly violates the principles of natural justice. We find that the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thereafter, they have been making the goods with brand name "AVON". The same is not disputed. The only point agitated is that the clearance during September, 2005 should be excluded. Further, it is also the plea that they did not know the relevant central excise provisions regarding use of brand name and as such, no liability can be confirmed against them. In this regard, we note that the appellants admitted the manufacture of branded goods and are not disputing the same in this appeal also. However, they insisted that they received the die only in September, 2005 and duty liability will arise thereafter only. We note that as the manufacture and clearance of branded items has not been disputed in this appeal, there is no need to go into fur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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