TMI Blog2022 (8) TMI 1150X X X X Extracts X X X X X X X X Extracts X X X X ..... landlord. M/s Zenox Products continued from the same premises thereafter but under the proprietorship of Smt. Ranjana Chaudhary. Hence it becomes clear that whatever articles including 106 coolers of Zi Zenox brand at the time of search, were found in those premises the ownership thereof and liability thereupon can be fasten only upon Smt. Ranjana Chaudhary but cannot be extended to Smt Tej Kiran Kothari. The Department has failed to bring on record any bill book, challan book or price list or packing material or invoice with respect to M/s Zenox Products which pertain to the period prior to August 2015. Above all it is apparent on record that M/s Zenox India under the proprietorship of Shri Girdhari Singh Kothari was in existence since February, 2012. No such similar documents logo plates etc., of the period during February, 2012 to August, 2015 have been produced by the Department. In absence thereof the allegations raised in the impugned Review Order and appeal though stands established against Smt. Ranjana Chaudhary the proprietrix of M/s Zenox Products but cannot be extended to Smt. Tej Kiran Kothari the previous proprietrix of said M/s Zenox Products. There is no evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said proprietorship firm was transferred to Smt. Ranjana Chaudhary with effect from September, 2014. The said firm was not registered under the central excise and was observed to have wrongly availing SSI exemption for their products under the aforementioned Notification No. 08/2003-CE dated 01.03.2003. 3. A show cause notice No. 258/17 dated 21.04.2017 was served upon the respondent M/s Zenox Products, the previous proprietor Shri Tej Kiran Kothari (the present respondent) and Smt. Ranjana Chaudhary, the proprietor of M/s Zenox Products with effect from September, 2015 proposing recovery of central excise duty amounting to Rs. 80,07,442 [Rs. 5725147 from Smt Tej Kiran Kothari + Rs. 2282295 from Smt Ranjana Chaudhary] during the period from 2012-13 to December, 2016. The said proposal was initially confirmed vide Order-in- Original No. 12/2017-18 dated 26.12.2017 the appeal thereof was allowed by setting aside the said order-in-original vide the order-in-appeal no. 984/18 dated 07.09.2018. Subsequently, there was a review order No. 01/19 dated 07.01.2019 directing the Joint Commissioner-CGST Commissionerate Udaipur for filing an appeal along with an application for condonat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... All these depositions were clearly appreciated by original adjudicating authority. However Commissioner (Appeals) has failed to take all those statements into consideration. The appellants also have been non- cooperative despite several summons being issued against them. Finally relying on the Commissioner of Central Excise Pune III vs. M/s Mali Pipe Industries 2019 (9) TMI 324-CESTAT Mumbai, learned authorised representative has prayed for the order of Commissioner (Appeal) to be set aside and the present appeal Department to be allowed. 6. While rebutting these submissions it is mentioned on behalf of the respondent that search was conducted in the premises of M/s Zenox Products when the said firm was owned by Smt. Ranjana Chaudhary instead of being owned by the present respondent Smt. Tej Kiran Kothari. Admittedly Smt. Tej Kiran Kothari transferred her proprietorship to Smt. Ranjana Chaudhary with effect from August, 2015 and M/s Zenox Products under the proprietorship of Smt. Tej Kiran Kothari had not done any business activity after August, 2015 in the said premises. M/s Zenox Products the proprietorship of Smt. Ranjana Chaudhay was altogether was a different legal entity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as follows: Two following firms found involved in the present case; No. 1 M/s Zenox India which was earlier owned by a partnership firm which dissolved in February, 2012 whereafter the firm continued as proprietorship firm of Shri Girdhari Singh Kothari till April, 2016. Thereafter, by virtue of an ikrarnama dated 02.04.2016 M/s Zenox India was sold by said Shri Girdhari Singh Kothari to Shri Kunal Chaudhary. The firm was engaged in manufacture of air coolers through the entire phase under the brand name of Zi Zenox . The firm was existing, initially at the premises of Panerio Ki Madri, Road Udaipur. With effect from April, 2016, it is existing at the premises 1-A-150, New Mali Colony, Udaipur. 2. M/s Zenox Products initially under the proprietorship of Smt. Tej Kiran Kothari wife of aforementioned Shri Girdhari Singh Kothari who later on transferred the said firm to Smt. Ranjana Chaudhary the mother of aforenamed Shri Kunal Chaudhay in August, 2015. This proprietorship firm also since beginning was engaged in the manufacture of air coolers. The address remained the same for this firm, and the firm was availing the benefit of SSI exemption under Notification No. 08/2003 da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof and liability thereupon can be fasten only upon Smt. Ranjana Chaudhary but cannot be extended to Smt Tej Kiran Kothari. 11. We further observe that original adjudicating authority while extending the said liability to the present appellant had mainly relied upon the statement of Shri Girdhari Singh Kothari the previous proprietor of M/s Zenox India, who owns brand of Zi Zenox and the statement of Shri Ramesh Gandhi, the manager of M/s Zenox Products. We further observe that Commissioner (Appeals) while setting aside the Order-in- Original, has appreciated the wrong interpretation and even mis-understanding of both these statements by original adjudicating authority. At this stage, we perused both those statements and observe that Shri Girdhari Singh Kothari had never deposed about his wife Smt. Tej Kiran Kothari to have ever manufactured air coolers in the same brand of Zi Zenox as was registered with M/s Zenox India. His simple deposition was that Smt. Tej Kiran Kothari was the proprietor M/s Zenox Products which has also been manufacturing air coolers since 2012, however, she continued as proprietor till August, 2015 when she closed that firm and transferred the name, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39; premise containing same substance including brand name or model name, except name of the company. (viii) Bill books and challan books including current books of both the firms were found there having same logo and bills of same brand name. (ix) Not a single document/record found in any premise, not a single person stated, showing that if they had ever done any job work for M/s. Zenox India or for any other firm. (x) They hardly cooperated in the investigation even after five summons/letters, rather attempted to trouble/misguide the investigation by asking some or other documents or even urge to produce bogus invoice. 13. As already appreciated above the material in the form of 106 coolers, logo plates, boxes with the name of two different owners printed upon them, all were found at the time when Smt Tej Kiran Kothari had no connection with M/s Zenox Products the premises were under the control and possession of Smt. Ranjana Chaudhary with her stuff therein since September, 2015 i.e. for 8-9 months prior the impugned search. Hence all those allegations though pertain to M/s Zenox Products but under the proprietorship of Smt. Ranjana Chaudhary. Hence the similarity ..... X X X X Extracts X X X X X X X X Extracts X X X X
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