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TMI Blog2017 (12) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... cement manufactured from clinker not manufactured within the factory and cement bearing brand name or trade name (whether registered or not) of another person. The dispute in the present case relates to the liability of the main appellant to pay Central Excise duty on the cement cleared by them. The Revenue held a view that the main appellant availed the concessional rate of duty when they have cleared cement with brand name of another person. The charge of clandestinely unaccounted clearance of branded cement was also made against the main appellant. Accordingly, proceedings were initiated against main appellant as well as various other persons to demand and recover Central Excise duty due to wrong availment of Notification No.4/2006 as well as unaccounted clearance of branded cement. Penalties were also proposed to be imposed on various noticees. The original authority adjudicated the case. He confirmed a total Central Excise duty liability of Rs. 78,47,657/- on the main appellant. Equal amount of penalty under Section 11AC of Central Excise Act, 1944 was also imposed. Penalties of Rs. 15 lakhs (Sh. Brahma Dutt Modi, Director of main appellant) Rs. 5 lakhs (Rajesh Modi, Director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atish Kumar Kabu stating that these two appellants were not the main parties. Only penalties have been imposed on them. As the ld. Counsel has to leave for outstation, a request was made for adjournment. We note that the case has been listed on various occasions earlier - 12.6.17, 13.07.17, 19.07.17, 17.08.17 and today. On these occasions either no one appeared on behalf of the appellant inspite of notice or they sought adjournment on one pretext or other. As such we proceed to dispose of these appeals alongwith appeals filed by the main appellant, based on appeal records. 4. Ld. AR for the Revenue reiterated the findings of the original authority. He submitted that the main appellant never maintained any separate detailed accounts regarding manufacture of cement with Kamdhenu brand and in their own brand. There is no evidence to support that they did manufacture cement in their own brand. Invoices clearly bear the brand name "Kamdhenu". During the course of verification the officers found large quantity of stock of packing box with "Kamdhenu" brand. The original authority has examined all the evidences before arriving at the decision. 5. We have heard both the sides and perused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant period, they had also cleared cement without affixing brand name of "Kamdhenu" and also with their own clinker and thus according to them demand made in respect of cement cleared during entire period covered under the impugned show cause notice is not correct. Thus circumstances of the case requires that instead of discussing the provisions or scrutiny of law, it is to be ascertained factually as to how much quantity cleared during the impugned period was cleared under the brand name of "Kamdhenu" or manufactured out of outside clinker. 16. The noticees have contended that their agreement for use of brand name "Kamdhenu" with M/s Kamdhenu Ispat Ltd. was effective during 1.12.2006 to 30.06.2007 and agreement with Kamdhenu Cement Ltd. (new entity) was effective during 1.7.2007 to 31.12.2007 and the same was terminated w.e.f. 1.1.2008. It is further contended by them that during the period 1.10.2006 to 30.09.2008 they had manufactured and cleared quantity of 36172 MT with outside clinker and under brand name of "Kamdhenu" on which duty was paid at full rate without availing concession under Notification No.4/2006-CE dated 1.3.2006. Further a quantity of 46928 MT cement was m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and name of 'KAMDHENU' were stored and used in the factory/ availability of 9088 bags of cement with brand name of 'KAMDHENU' on 4.9.2008 at the factory premises/ admission of Sh. Ram Kishore Sharma, authorised signatory in his statement dated 4.9.2008 that 800 bags of cement found loaded in the Truck No. HR-46-5300 were manufactured out of outside clinker and affixed with brand name "KAMDHENU". These facts which can not be controverted are sufficient enough to establish that the assessee were manufacturing and clearing goods bearing brand name 'KAMDHENU' upto 4.9.2008 i.e. the date of visit of Central Excise officers to their factory. The contention of the assessee that ..... pre printed 'KAMDHENU' brand was used in cases where cement was of other than 'KAMDHENU' brand is devoid of merits because the buyer would not accept the quality which is different from the quality borne on the invoice. The invoices undoubtedly imply that assessee during their transaction were specific about the brand of the cement cleared under the invoice. The sale invoices conspicuously mentioned the 'KAMDHENU' brand name. It can be no body's case that the brand name was written on these documents every ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Excise Act, 1944 at the premises of the assessee on 22.09.07 wherein he stated that Central Excise officers had found a "Kachhi Slip" (private notebook) in their premises wherein the details of some clearances of cement in the month of September, 2007 were given. He stated that as per his knowledge, the duty paid clearances had also been included alongwith the quantity for which invoices were not prepared and duty was not paid and he was ready to pay the Central Excise duty on such clearances. It was never disputed that the said private note book was recovered from their factory premises and entries therein were related to clearance in their unit. Sh. Brahm Datt Modi, Director is not an ordinary worker but a Director of the Company. Being Director of the unit he is prejumed to be well-informed and it cannot be accepted that he was under any pressure while accepting the contents of the note book. There is plethora of decisions on the validity of "notebook evidence". The said register was recovered from the premises of the assessee and contained clearance details. There can be no reason for any one to scribble entries in the said register hypothetically and keep in the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmittedly, the appellant did manufacture cement with brand name "Kamdhenu". There is no dispute on this. The main appellant is claiming that part of the goods were cleared with their own brand names. It is necessary for them to support their claim with sustainable documentary evidence. It is the main appellant who claims the concenssional rate of duty available to cement cleared without using another person's brand name. Hence, it is imperative for them to establish the existence of such fact. 8. On careful consideration of the submissions made by the appellant, we are of the considered view that they have failed to establish such fact categorically. The reasons recorded by the original authority are based on material as well as oral evidences gathered during investigation. The appellant's present appeal cannot bring in any categorical contrary evidence to persuade us to interfere with the said impugned order. Accordingly, we find no merit in the appeal fined by the appellant and two of its Directors against confirmation of demand and imposition of penalties. However, we find penalties imposed on the paid employees namely Sh. Ram Kishor, Authorised Signatory and Sh. Bhawani Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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