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2011 (5) Supreme 719
SUPREME COURT OF INDIA
Dr. Mukundakam Sharma and Anil R. Dave, JJ.
Commissioner of Central Excise, Mumbai — Appellant
versus
M/s. Kalvert Foods India Pvt. Ltd. & Ors. — Respondents
Civil Appeal Nos. 4500-4502 of 2003
Decided on : 9-8-2011
Central Excise Act, 1944- Section 14-Central Excise Tariff of India 1998-99- Chapter 21 -Appeals against Judgment passed by CEGAT whereby Tribunal allowed the appeals filed by respondents holding that respondents were not guilty of clandestine removal of excisable goods and also that goods of respondent 1 were not excisable inasmuch as they were not packed in containers under a brand Name-Evidence on record that what was being used by respondent under expression “Kalvert” was a “Brand name” and not a “House mark” as sought to be alleged by respondent and had been wrongly accepted by Tribunal- Hence, articles of assorted jams, pickles, squashes, cooking sauces, chutneys, syrups, synthetic vinegars etc. manufactured and sold by respondent company under a brand name “Kalvert” were liable to be charged for excise duty at rate prescribed in the Excise Law- Impugned order passed by Tribunal set aside - Appeals allowed (37 to 39)
Facts of the Case :
Present Appeals have been filed against Judgment passed by CEGAT whereby Tribunal allowed the appeals filed by respondents holding that respondents were not guilty of clandestine removal of excisable goods and also that goods of respondent 1 were not excisable inasmuch as they were not packed in containers under a brand Name.
Findings of the Court :
On the basis of materials available on record it was clear that Company was guilty of clandestine removal of excisable goods as non-excisable goods in order to evade excise duty. It was proved from the fact that Managing Director voluntarily came forward to sort out the issue and to pay the Excise duty and paid Excise duty to the extent of Rs. 11,00,000/- on different dates. The said act of respondent 1 was very material and relevant but the same was ignored by Tribunal while arriving at a wrong conclusion. Issue with regard to clandestine removal of excisable goods as non-excisable goods by respondent from their premises and selling to its dealers and distributors was clearly proved from materials on record. What was being used by respondent under expression “Kalvert” was a “Brand name” and not a “House mark” as sought to be alleged by respondent and had been wrongly accepted by Tribunal. Hence, articles of assorted jams, pickles, squashes, cooking sauces, chutneys, syrups, synthetic vinegars etc. manufactured and sold by respondent company under a brand name “Kalvert” were liable to be charged for excise duty at rate prescribed in the Excise Law.Impugned order passed by Tribunal was set aside .Appeals were allowed
JUDGMENT
Dr. Mukundakam Sharma, J. —
1. These appeals arise out of Judgment and Order passed by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi Bench [for short “CEGAT”] on 02.08.2002 whereby the Tribunal had allowed the appeals filed by the respondents holding that the respondents were not guilty of clandestine removal of excisable goods and also that the goods of the respondent no. 1 were not excisable inasmuch as they were not packed in containers under a brand name.
2. Before entering into rival contentions of the parties, it would be necessary although in a nutshell to look into the facts of the case leading to filing of the present appeals.
3. The respondent No. 1, M/s. Kalvert Foods India Pvt. Ltd. is a company (in short hereinafter referred to as ‘the Company’) engaged in the manufacture of P & P Food Products, such as, assorted jams, pickles, squashes, cooking sauces, chutneys, syrups, synthetic vinegars etc. The company is also trading in sugar, salt and pepper by packing into small packs. The respondent No. 2, Shri Yunus A. Kalvert is the Managing Director of the Company.
4. On 22.11.2000, on receiving information that respondents were indulging in clandestine removals of its finished P & P food products without payment of Central Excise Duty, the revenue authorities searched the factory premises of the respondent no. 1. Searches were also carried out at the premises of its distributors/wholesale dealers/traders of respondent no. 1 situated in and around Mumbai and other connected premises.
5. During the search conducted at the premises of the respondent no. 1 several incriminating documents, articles and records were found. A huge quantity of finished goods were also found lying in the factory premises. Further, it was also noticed that there was one tempo parked inside the factory premises loaded with cartons containing the excisable goods manufactured by the said company and was about to leave the factory premises. On inquiry from the driver of the said tempo it was found that the driver was not in possession of any documents relating to the goods loaded in the said tempo. On inspection of invoices at the premises of the respondent no. 1, it was also found that there were two invoices with the same serial number, in respect of different products. The officers took stock of the goods in the factory and it was found that the finished goods lying in the factory were in excess of the stock shown and accounted for in the RGI Register.
6. Specific allegation against the respondent is that the goods found lying excess in the stock than what were entered into RGI register, valued at Rs. 7,33,668/- and the same was seized.
7. Thereafter, search was also carried out at the premises of the dealers/traders, to whom the company allegedly supplied the finished goods. The goods found lying in those premises to the value of Rs. 6,22,946/- were also seized on the ground that they were not duty paid.
8. Similarly, the search was carried out by the officers on 28-11-2000, at the premises of M/s. Relish Trading Company (in short ‘RTC’)/the selling agent of the respondent-company, M/s. Sai Krupa, a partnership firm of the Managing Director of the respondent No. 1; and at the premises of sole proprietor of RTC and records pertaining to the sale and purchase of the goods lying in the offices of these companies, were seized. It revealed to the searching officers that, in fact, the respondent-company had cleared jams, syrup, sauces, pickles, etc., from the factory premises to the above said selling agents without payment of duty, but had shown those clearances as that of the sugar, in the invoices and had also cleared the branded goods to the dealers/traders.
9. After completion of the entire process a show cause notice was issued to the Company and its Director. Such notices were also issued to the proprietor of M/s. RTC, its partner and M/s. Sai Krupa Corporation. Through notices issued, duty demand was rais
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