TMI Blog2019 (4) TMI 891X X X X Extracts X X X X X X X X Extracts X X X X ..... her appellants as well. In any case, the AKS is brand fixed were ‘AKS Gold’ and ‘AKS Silver’ appears to be a different brand name than ‘AKS’ - In this case the statement of Shri Bharat Bhushan which was relied upon by the Department have not been examined by the Adjudicating Authority before accepting their statement and also the cross examination of these persons were permitted even after categorical submissions made by the appellants before the Adjudicating Authority. Appeal allowed - decided in favor of appellant. - E/52216, 52217, 52988, 52989, 52990/2018 - Final Order No: 53571-53575/2018 - Dated:- 10-4-2019 - Ms. Archana Wadhwa, Member (Judicial) And Mr. Bijay Kumar, Member (Technical) Shri A K Prasad Ms. Sushmita Kumari, Advocates for the appellant Shri V B Jain, Authorized Representative for the respondent ORDER Per Bijay Kumar 1. All these appeals have been filed against the impugned order, wherein the Ld. Commissioner (Appeal) has upheld the order passed by the lower Adjudicating Authority. 2. Briefly stated facts of the case are that acting on the intelligence gathered by the Department regarding the evasion of duty by M/s Steel Parad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brand name was being used by the various appellants in these appeals, whose proprietor were family members of Shri Naveen Jain. After the conclusion of the investigation, the Show Cause Notices issued to the various appellants which culminated into various Order-in-Originals which were decided by the lower Adjudicating Authority in the impugned order. The issue to be decided in this case is as to whether the ld. Commissioner (appeal) was correct in holding that the SSI exemption was availed by the various appellant in contravention of provisions of Notification No. 8/2003-CE dated 1/03/2003 and further to determine as to whether the appellant, Shri Naveen Jain is liable to penalty under Section 26(2) of the Central Excise Rules, 2002. 4. Learned Advocate on behalf of the appellants submits that during the investigation, the Department seized various reports/ documents and recorded statements of following persons:- (a) Shri Ankur Jain, Proprietor of M/s Akshat Enterprises (Appeal No. E/52216/2018 (b) Shri Inder lal, Supervisor statement dated 18.10.2012 (c) Shri Naveen Jain Statement dated 18.10.2012 26.10.2012 5. A lot of issues were raised before the Adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it of Notification for the manufacture of the branded goods which belonged to the other appellants. 8. We heard the parties and perused the appeal records. 9. The issue to be decided in this appeal as to whether the appellants have availed the benefit of Notification No. 8/2003 (supra) correctly or otherwise. The entire case is based on the statements recorded during the investigations. It is on record that the Ld. Adjudicating Authority has not permitted the cross examination of Shri Naveen Jain, and others as per the provisions of Section 9 D of the Central Excise Act, 1944 (hereinafter refer to as Excise Act ). For the better appreciation the provisions of Section 9 D is reproduce as under; [9D. Relevancy of statements under certain circumstances.- (1) A statement made and signed by a person before any Central Excise Officer of a gazetted rank during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains,- (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... milar view has been taken in case of Hon ble Tribunal in case of Basudev Garg vs Commissioner of Customs [2013 (294) ELT 353 (Del.)], Hon ble Punjab and Hariyana High Court in case of M/s Ambika International vs. Union of India and Another [ 2016-TIOL-1239-HC-P H-CX] wherein it is held as under; 14. In view of the fact that the case of the petitioners is essentially premised on Section 9D of The Central Excise Act, 1944, it would be appropriate to reproduce the said provision, in extenso, thus : 7 of 16 CWP No. 12615 of 2016, CWP No. 12616 of 2016, CWP No. 12617 of 2016 and CWP No. 12618 of 2016. 9D. Relevancy of statements under certain circumstances.- (1) A statement made and signed by a person before any Central Excise Officer of a gazetted rank during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains,- (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by evidence other than the statement itself. The evidentiary value of the statement, insofar as proving the truth of the contents thereof is concerned, is, therefore, completely lost, unless and until the case falls within the parameters of Section 9D(1). 18. The consequence would be that, in the absence of the circumstances specified in Section 9D(1), if the adjudicating authority relies on the statement, recorded during investigation in Central Excise, as evidence of the truth of the facts contained in the said statement, it has to be held that the adjudicating authority has relied on irrelevant material. Such 9 of 16 CWP No. 12615 of 2016, CWP No. 12616 of 2016, CWP No. 12617 of 2016 and CWP No. 12618 of 2016. reliance would, therefore, be vitiated in law and on facts. 19. Once the ambit of Section 9D (1) is thus recognized and understood, one has to turn to the circumstances referred to in the said sub- section, which are contained in clauses (a) and (b) thereof. 20. Clause (a) of Section 9D (1) refers to the following circumstances : i) when the person who made the statement is dead, ii) when the person who made the statement cannot be found, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it the cross examination of Shri Naveen Jain and others. 12. We, also find that during the investigation, the entire confirmation of demand is based on the statement of Director, Shri Naveen Jain. It has held in the case of M/s Vikram Cement Pvt. Ltd. vs. Commissioner of Central Excise Kanpur, [2012 (286) ELT 615 (Tri- Del.)], wherein it is held that the evidential value as a sole statement of Director cannot established the guilty of assessee. The burden of proof lies on the Revenue and required to discharge effectively, however, the same has not been done in this case. As far as the use of the common brand name is concerned, it is on record that the same has been assigned by the assignment deed is dated 1/04/2012 on other applicants. It has been held in the case of Kali Aerated Waters Works vs. Commissioner of C. Ex., Madurai. [2015 (320) ELT 692 (SC)] at para 4 and 5 as under; 4. It is clear from the above that the trade name Kalimark Aerated Water Works and trade mark mentioned in the said agreement would remain vested in all the parties including the appellant and the appellant was also allowed to use the same. The agreement further provides that the user of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been having the right of ownership over the Brand names in the year 1962 itself when he became the coparcener in the HUF firm. The appellant has had his exclusive ownership rights even prior to the said impugned notification. Hence the subsequent notification cannot take away the ownership right of the appellant over the brand names KaliMark Bovonto and Frutang and other brand names and applying the same to the specified goods manufactured by the appellant and marketing the same within his own marketing area in exclusion of others. On perusing the trade mark certificates, Decree of the Civil Court, Mutual Agreement dated 12-3-1993 and also considering the above contentions, I find that the appellant is the legal owner of the brand names within his marketing area. 5. It is thus manifest that the appellant has been using its own brand name Kalimark and it belongs to the appellant. In view thereof, the case of the appellant is squarely covered in its favour by the judgment of this Court in Civil Appeal No. 9157 of 2003 titled CCE, Hyderabad-IV v. Stangen Immuno Diagnostics decided on 19-3-2015 [2015 (318) E.L.T. 585 (S.C.)]. 13. In view of above, we are of view ..... 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