ORDER
P.S. Bajaj, Member (J)
1. This appeal has been filed by the Appellants against the impugned Order-in-Appeal vide which the Commissioner (Appeals) has affirmed the Order-in-Original of the Additional Commissioner who confirmed the duty demand and imposed penalties on the Appellants as detailed therein.
2. The Appellants are engaged in the manufacture of flat knitting machines. They had been availing the SSI exemption under Notification No. 1/93-CE, dated 28-2-93 as amended. But they were found using the brand name “ELEX” on those machines which belonged to M/s. Elex Engineering Works and as such according to the C. Ex. Authorities they were not entitled to avail the benefit of said notification. They were, accordingly, served a show cause notice raising the duty demand of Rs. 12,21,834/- for the period 1-10-94 to 16-9-98 and proposing imposition of penalty and payment of interest. After getting their reply, the Adjudicating Authority confirmed the demand of duty and imposed equal amount of penalty payable with interest and also imposed separate penalty on Shri Pritam Singh, Proprietor of the Appellant’s firm as detailed in the Order-in-Original. The said order has been affirmed by the Commissioner (Appeals).
3. We have heard both the sides.
4. The benefit of the SSI exemption Notification No. 1/93-CE, dated 28-2-93 had been denied to the appellants solely on the ground that they had manufactured and cleared the goods (flats knitting machines) under the brand name “ELEX” which belonged to M/s. ELEX Engineering Works. But on the record, excepting the bald testimony of Shri Pritam Singh, Proprietor of the appellant’s firm, which too was retracted by him later on, there is no oral or documentary evidence to substantiate this ground. We find from the record that he (Proprietor) in his statement recorded on 16-9-98, did not deny the use of the brand name “ELEX” on the fully automatic knitting machine. He also allegedly did not dispute that the said brand name belonged to M/s. Elex Engineering Works. But this statement was retracted by him and subsequently his statement was recorded by the Officers wherein he denied the use of said brand name on the machines. He explained the circumstances and state of confusion under which he made earlier statement. Therefore, his earlier statement which stood retracted could not be taken as substantial piece of evidence for bringing home the allegations of having used the brand name of another person as set out in the show cause notice. Rather, his statement was to be taken only as light weight piece of evidence needing independent corroboration before relying upon the same, in view of the ratio of law laid down in Manindra Chandra Dey v. CEGAT, 1992 (58) E.L.T. 192 wherein it has been so observed regarding confessional statement, by the Hon’ble Calcutta High Court.
5. We do not find any oral or documentary evidence on the record lending corroboration to the retracted confessional statement of Shri Pritam Singh, Proprietor of the appellant’s firm. There is no material on record to suggest if any enquiry was conducted from the buyers to whom the machines were sold by the appellants, in order to ascertain that those machines carried brand name “ELEX”. Rather the Appellants had brought on record the certificates issued by their various buyers of the machines, namely, Mohan Knitters, PEE JAY Apparels (P) Ltd., Elite Hosiery & Textile, Oosha Traders, Kalptaru Fashions, Ajanta Knitwears, Wonder Knitwears Ltd., Elson Hosiery Mills, T.S. Mechanical Works, Kanodia Hosiery Mills (P) Ltd., Manglam Niryat, Mod Style Hosiery Mills, Nagesh Knitwears Ltd., Trimurti Knitting Works and Chand Krishan Hosiery Works, wherein they all had given the details of the invoice number vide which they purchased the machines from the appellants and categorically stated that no brand name “ELEX” was embossed those machines. Rather, one M/s. Manglam Niryat, had stated in the certificate that the Hosiery Flat Knitting Machines purchased by them from the appellants had “EKM” label. There is no material on record to suggest that any of the certificates issued by the above said firms, on enquiry were found to be fictitious and factually incorrect. No statement of any Proprietor/Partner of these firms was recorded. Therefore, the certificates issued by all these firms could not be brushed aside by the authorities below. In the face of the evidence, the retracted alleged confessional statement of Shri Pritam Singh, Proprietor of the appellant’s firm could not be given much credence. The authorities below have wrongly accepted the said statement of Shi Pritam Singh as substantial evidence by ignoring the above said documentary evidence.
6. Apart from this, even otherwise legally it cannot be concluded that the appellants were using the brand name of another person. The brand name “ELEX”, according to the Department belonged to M/s. Elex Engineering Works. But Shri Pritam Singh who is the proprietor of the appellant’s firm, is one of the partners in that firm. Being co-owner of the brand name in the above said firm, he could not be said to had used the brand name of another person, in the manufacture and clearance of the goods in his individual capacity. He cannot be legally said to be running another firm of M/s. Elex Knitting Machinery, as single person cannot constitute any firm under the law. Therefore, being already co-owner of the brand name, he was competent to use the same.
7. In light of the discussion made above, the benefit of SSI exemption Notification No. 1/93-C.E., dated 28-2-93 could not be legally denied to the Appellants. Therefore, the impugned Order of the Commissioner (Appeals) is set aside. The appeal of the Appellants is allowed with consequential relief, if any, permissible under the law.