2018 (9) TMI 492 – CESTAT NEW DELHI – TMI – Validity of second SCN – Time Limitation – SSI Exemption – Use of Brand Name of Others – Nuloux – Ganak – Savstar – N/N. 8/2003-CE dated 1.3.2003 – Held that:- In this case admittedly, investigation was conducted on 22.1.2013 and during the course of investigation certain goods were seized. For seizure of the said goods, a show cause notice was issued on 19.7.2013 to the trading unit i.e. M/s Devika Enterprises wherein the allegation is that the manufacturing unit is engaged in manufacturing and clandestinely clearing the goods in brand name of others. The said manufacturing unit is named as M/s B.M. Enterprises, but no show cause notice was issued. Later on, after issuance of the second show cause notice, the show cause notice dated 19.7.2013 has been dropped against the appellants.
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The appellants are manufacturing branded goods of others and subsequent notice has been issued on the basis of same investigation on 14.6.2016 is not sus
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B.M. Enterprises and penalty has been imposed on M/s Devika Enterprises. 2. The facts of the case are that on 22.1.2013, a search was conducted at the premises of M/s B.M. Enterprises which is a proprietary concern of Smt. Seema Garg wife of Shri Devender Kumar who is engaged in manufacture of electric wire and cable and enjoying benefit of SSI exemption Notification No. 8/2003-CE dated 1.3.2003. During the course of search, certain branded goods were found in the factory premises of M/s B.M. Enterprises. The branded goods were of several brands but mainly three brands were disputed by the department which are Nuloux, Ganak, Savstar. It is the allegation of the department that these brand names had owned by third party, therefore, the appellant is not entitled to avail the benefit of SSI exemption notification. In these set of facts, a show cause notice was issued to the co-appellant viz. M/s Devika Enterprises for confiscation of the goods seized on 19th July 2013 on account of the b
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of M/s B.M. Enterprises and the show cause notice was issued to confiscate the seized goods to M/s Devika Enterprises. Later on, another show cause notice was issued on realisation of the mistake that these seized goods belongs to M/s B.M. Enterprises. Another show cause notice was issued on 14.6.2016 to demand duty on the said goods from both the appellants is highly time barred and not sustainable in the light of the decision of Hon ble Apex Court in the case of Nizam Sugar Factory Vs. Collector of Central Excise, A.P. – 2006 (197) ELT 465 (SC), therefore, the show cause notice dated 14.6.2016 is not sustainable. Accordingly, demands are not sustainable. 4. On merits, he submits that for the brand name viz. Nuloux, they are having the assignment deed in their favour, therefore, the said brand name cannot be said to belongs to third party, therefore, on that account demand is not sustainable. With regard to brand name Savstar, it is his contention that the said brand name is not regis
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es. Therefore, on realisation that the manufacturing unit is owned by M/s B.M. Enterprises, the subsequent show cause notice was issued. 6. Heard the parties. Considered the submissions. 7. On careful consideration of the submissions made by both the sides, we find that in this case admittedly, investigation was conducted on 22.1.2013 and during the course of investigation certain goods were seized. For seizure of the said goods, a show cause notice was issued on 19.7.2013 to the trading unit i.e. M/s Devika Enterprises wherein the allegation is that the manufacturing unit is engaged in manufacturing and clandestinely clearing the goods in brand name of others. The said manufacturing unit is named as M/s B.M. Enterprises, but no show cause notice was issued. Later on, after issuance of the second show cause notice, the show cause notice dated 19.7.2013 has been dropped against the appellants. It has been alleged in the show cause notice dated 19.7.2013 that the appellants are manufactu
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