TMI Blog2018 (1) TMI 1209X X X X Extracts X X X X X X X X Extracts X X X X ..... essee, the mere fact that the assignment deed is not registered can not alter the position - as the appellant is using the brand name of another person but it was by way of assignment deed. In that circumstances, the appellant is not using the brand name of another person but they are using their own brand name as assigned to them - benefit of SSI exemption N/N. 08/2003-CE dated 01.03.2003 cannot be denied to the appellant. Clandestine removal - parallel invoices - Held that: - The Revenue has not come up with any positive evidence contrary to the explanation given by the appellant. Therefore, the Revenue has failed to come up with positive evidence in support of clandestine removal of goods. As no corroborative evidence has been produced by the Revenue and allegingd that on the strength of parallel invoices the appellant has cleared the goods, then the allegation of clandestine removal is not sustainable when M/s. TCL itself has explained that the explanation given by the appellant at the time of investigation is in terms of purchase agreement and monthly invoices has been raised as per purchase agreement - demand set aside. Appeal allowed - decided in favor of appellant. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces were issued to M/s. TCL were found and on the basis of allegation that appellant has cleared the goods on the strength of parallel invoices, a demand of ₹ 23,48,350/- was proposed. It was also alleged that as per the goods receipts, the appellant has sold 58,000 Kgs. of Defoamer to M/s. TCL whereas, invoices shows the quantity of 23,854 Kgs. The said show cause notices were adjudicated and demand of duty was confirmed along with interest and penalties on both the appellants were imposed and the goods were also held liable to confiscation. Consequently, redemption fine of ₹ 7,500/- and penalty of ₹ 4,000/- was also imposed. Against the said orders, the appellants are before us. 3. Ld. Counsel for the appellant submits that the appellant has never used the brand name of NASCPL and there is no evidence to that effect. The appellant has not cleared any goods under the brand name of NASCPL. It is only in the purchase order the name of the product Defoamer Neelco is mentioned and this does not establish that appellant has used brand name of another person. To support, he relied on the decision in the case of CCE, Jamshedpur Vs. Superex Industries 2004 (174) E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there is no evidence at all that the goods were cleared twice to M/s. TCL or cleared to somewhere else. The only reason for denial of SSI benefit and alleging that the explanation given by the appellant is an afterthought. It is his submission that the above facts were explained on the spot as well as later, in detail and hence the observations made by the adjudicating authority is not sustainable. It is also submitted by the ld. Counsel that investigation was made by the officers from M/s. TCL who has also explained the same. Therefore, in the absence of any evidence of clandestine removal, demand is not sustainable as the burden to prove charge of clandestine removal is on the Revenue with tangible evidence which the department has failed to do so. Alternate submission of the ld. Counsel is that even if the appellant is liable to pay any duty, that has to be calculated on the basis of cum-duty price. He further submits that the appellant was running their unit bonafidely hence, the question of suppression of facts does not arise. Therefore, extended period of limitation is not invokable as the appellant has nothing suppressed any fact from the department. He also submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion No. 08/2003-CE dated 01.03.2003, we find that in this, M/s. TCL is issuing purchase order for supply of goods namely, Defoamer under the brand name Neelco. Neelco is the brand of M/s. NASCPL. It is also a fact on record that the appellant is not using the said brand name on their products. Moreover, on the invoices also, the said brand name is not found mentioned in the invoices. These facts are not in dispute. However, we find that during the course of investigation, certain goods were found having the brand name of NASCPL. In that circumstance, the appellant cannot absolve their liability of using the brand name of another person, therefore, using the brand name of another person on the said goods found in their factory. Therefore the decision in the case Superex Industries (supra) is of no help to the appellant as in the said case, the goods were not having the brand name and not indicated on their invoices but in this case, some goods under the brand name of NASCPL were found in the premises of the appellant. We find that the appellant has placed on record the assignment deed in their favour, the same is extracted as below :- As per the assignment deed, the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. In that circumstance, the burden cast on the Revenue to produce the evidence contrary to the explanation given by the appellant during the course of investigation itself. The Revenue has not come up with any positive evidence contrary to the explanation given by the appellant. Therefore, the Revenue has failed to come up with positive evidence in support of clandestine removal of goods. As no corroborative evidence has been produced by the Revenue and allegingd that on the strength of parallel invoices the appellant has cleared the goods, then the allegation of clandestine removal is not sustainable when M/s. TCL itself has explained that the explanation given by the appellant at the time of investigation is in terms of purchase agreement and monthly invoices has been raised as per purchase agreement. Further, Revenue has not alleged that at the time of clearance of goods the appellant has raised invoices in the name of TCL and diverted the goods somewhere else, therefore, charge of clandestine removal of goods is not sustainable against the appellants. The same is supported by the decision of Golden Steel Corporation Limited vs. CCE, Kolkata 2017 (347) ELT 570 (Tri. Kolkata ..... X X X X Extracts X X X X X X X X Extracts X X X X
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