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TMI Blog2018 (3) TMI 620X X X X Extracts X X X X X X X X Extracts X X X X ..... iod Involved Nature of Office Brand names involved Nature of demand with duty amount V/22.01/15/17/94-Adjn. Dt. 28.2.94 issued by Collector of CE, Madurai Feb. 1989 to Sept. 1993 Suppression of production and clandestine removal as reflected in the sales manager s report Bisleri Club Soda, Gold Spot, Limca, Thumps Up, Citra, Maaza @ Normal effective rate of duty Rs. 9,61,561 V/22.01/15/42/94-Adjn. Dt. 24.9.94 issued by Collector of CE, Madurai Sept. 1991 to Nov. 1993 Denial of SSI exemption for using other man s brand (Parle) who is not eligible for SSI exemption Bisleri Club soda and Citra Demand of differential duty (effective rate minus SSI exemption) Rs. 49,75,204/- O.C. No. 2387/93 dt. 2.11.93 issued by Superintendent, Nager Coil Range April 1993 to Oct. 1993 Simultaneous availment of MODVAT facility and SSI exemption Citra Normal effective rate of duty Rs. 13,43,874/- O.C. No. 307/94 dt. 26.2.94 issued by Superintendent, Nager Coil Range 20.9.1993 to 30.11.1993 Denial of SSI exemption for using other man s brand who is not eligible for SSI exemption Citra Normal effective rate of duty Rs. 5,31,582/- O.C. No. 621/94 dt. 26.2.94 issued by Superintenden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsequent years. 5.4 The Sales Manager Report (SMR) cannot be the sole basis to allege clandestine removal. The SMR was inflated one to show higher sales and to meet the sales target and was at the instance of the Franchisor. The adjudicating authority failed to consider the Plant Manager s Report tallied with the RG-1 register and no rationale method was adopted to corroborate the charge of clandestine removal. There is no evidence at all with regarding purchase of excess crown corks, concentrates, bottles etc. The issue involved is covered by the decision of the Hon'ble Tribunal in the case of Commissioner of Central Excise Vs. Moon Beverages reported in 2002 (150) ELT 976; Commissioner of Central Excise Vs. Annapurna Industries Ltd. reported in 2003 (153) ELT 586 and Madura Coats Pvt. Ltd. Vs. Commissioner of Central Excise reported in 2009 (245) ELT 403. 5.5 With regard to demand of Rs. 11,44,571/-, that has been made on the ground that the owners of Bisleri Club Soda do not manufacture club soda and hence PBPL themselves are not eligible for SSI exemption. Ld. Advocates submit that there is no legal requirement that the brand owner must actually manufacture the goods. What is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... breakages, consumption of raw materials, wastage resulted. Hence the plea of the appellant that the SMRs were only inflated showing higher sales figures cannot be accepted. 6.2 With respect to case law of Moon Beverages Ltd. (supra), relied upon by the appellant, the charge of clandestine removal was sought to be established on the basis of one single factor namely that of the SMR. Whereas in the present case, the SMRs were further used for formulating marketing programme and expenditure on advertising at national / regional level through soft drinks advertising and Marketing Services Pvt. Ltd. 6.3 In respect of dispute concerning Bisleri Club Soda, the ld. AR takes us to page 9 of the impugned order, wherein the Commissioner (Appeals) has found that PEL were the proprietors of Bisleri Club Soda and this brand name does not appear to have been given under the written consent to the Bisleri Club Soda to their franchise units. Hence the Bisleri Club Soda manufactured by various franchisees of PEL including PBPL are also not eligible for exemption. 6.4 In respect of demand of Rs. 38,30,633/-, ld. AR submits that LFFL brand owned by CITRA are not eligible for SSI exemption as they h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essees and M/s. PEL under which they were required to maintain complete record relating to production, sales and distribution of beverages and furnish these details to M/s. PEL. The sales figures supplied by the assessees were fed into the computer by M/s. PEL and used by them for various purposes such as brand strategy, marketing research etc. In this connection, the statements of various officers of M/s. PEL were recorded and they confirmed the correctness and authenticity of the sales figures reflected in the computer print out. These sales figures were found to be much higher than the sales figures recorded in the RGI register maintained by the assessees. Besides this, the Central Excise officers also found that the assessees have not accounted for the entire quantity of NABB received from M/s. PEL/Parle International Ltd. xxxx xxxx xxxx xxxx xxxxx 6. Shri C.G. Hegde, Franchise Development Manager of PIL has stated that they were receiving Sales Manager Report from Franchise bottlers in form SRM-I to SMR-6 every month, based on which the franchise wise sales reports were fed into the computers and the sales was analysed and also sent to the Advertising agencies for working ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not liable to confiscation. xxxx xxxx xxxx xxxx xxxxx 14. Further, it is a well settled legal position that clandestine manufacture and removal cannot be alleged and duty demand cannot be confirmed thereon, solely depending upon the use of one particular material. Other raw materials required are crown corks, sugar, and carbon dioxide. The Department has not been able to establish that the assessees have surreptitiously procured such raw materials for use in the manufacture of aerated waters. This, coupled with the fact that the assessees have further explained for the difference in quantity of concentrates purchased and quantity accounted for, renders the duty demand on account of suppression of production, unsustainable." 8.2 In the circumstances, we find that the Moon Beverages s decision will on all fours apply to the facts of the present dispute and since that decision has attained finality, the ratio thereof will necessarily have to be applied to facts of the present case also. Hence that portion of the impugned order on this issue confirming the demand of Rs. 9,61,561/- will not sustain and will have to be set aside. So ordered. 8.3 The 2nd issue concerns an allegation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified goods" 8.4 Applying the ratio of Sri Ganganagar Bottling (supra), we find that the portion of the impugned order confirming demand on this issue of Rs. 11,44,571/- cannot be sustained. So ordered. 8.5 The last issue of contention involves the duty demand of Rs. 38,30,633/- on the ground that LFFL, brand owners of CITRA are not eligible for SSI exemption as they have exceeded statutory limits of aggregate value of clearances. In the statement of facts annexed to the show cause notice dated 24.9.1994, it has been alleged that PEL and LFFL are controlled by the same management headed by Shri R. Chauhan. The notice has given the clearance value of all excisable goods by these three factories in page 24 of the notice and has alleged that since the statutory limits of aggregate value of clearances specified in Notification No.175/86 having been exceeded, the branded goods LFFL manufactured by PBPL as a franchisee will also not be eligible for SSI exemption. The period of dispute indicated in the show cause notice is from 1.9.1991 to 11.11.1993, covering the periods when SSI Notifications No.175/86 dated 1.3.1986 and 1/93 dated 28.12.1993 were in force. In response to these a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew Delhi. With reference to the various positions and as Directors in LFFL, PEL, AMPL, PIL, Apex Traders, M/s Coolade Beverages (P) Ltd. And M/s Delhi Bottling Co. Ltd. it is submitted that either Shri Ramesh J. Chauhan or Prakash J. Chauhan or persons related to him or being members of the Board of Directors of various companies had right to create facet to avail the benefits under the Notification in question. Since these concerns could not have availed the benefits they have created dummy concerns to avail the benefits. It is submitted that in the circumstances there was necessity to lift the corporate veil to find out the true owners. 8. Per contra, learned counsel for the respondents submitted that there is no material that the respondents had ever been parties to the so called arrangement, even if it is accepted for the sake of arguments but not conceded, that such arrangement was in reality made. There was no material brought on record to show that the respondents had any role to play in such matters as alleged. Even the show cause notice did not refer to any particular material to come to such a conclusion. Therefore, the Commissioner and the CEGAT were justified in holdi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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