COMMISSIONER OF CENTRAL EXCISE, MUMBAI versus M/S. KALVERT FOODS INDIA PVT. LTD. AND ORS.

Citation: [2011] 9 S.C.R. 902 · Decided: 09-08-2011 · Supreme Court of India · Bench: MUKUNDAKAM SHARMA · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2011] 9 S.C.R 902 
' , 
A 
COMMISSIONER OF CENTRAL EXCISE, MUMBAI 
v. 
MIS. KALVERT FOODS INDIA PVT. LTD. AND ORS. 
(Civil Appeal Nos.4500-4502 of 2003) 
B 
AUGUST 9, 2011 
[DR. MUKUNDAKAM SHARMA AND 
ANIL R. DAVE, JJ.] 
Central Excise Act, 1944: s.11A - Demand of duty and 
c levy of penalty - Suppression of facts - Extended period of 
limitation - Invocation of - Allegation that assessee-company 
clandestinely removed excisable goods by showing them as 
non-excisable - Held: The statement of Managing Director 
·' 
was on record where he had admitted the fact of clandestine 
D clearance of excisable goods and, therefore, has voluntarily 
come forward to sort out the issue and to pay the central 
excise duty liability - The company was also maintaining two 
sets of computerized commercial invoices, one for excisable 
products and the other for non-excisable goods - Plea of 
E 
company that the goods were not excisable inasmuch as they 
were not packed in containers under a brand name not tenable 
since the Managing Director of the company had himself 
stated that they have been selling their products under the 
" 
brand name "Kalvert" - Goods manufactured and sold by the 
F 
company under a brand name "Kalvert" were, therefore, liable 
to be charged for excise duty - Since there was clandestine 
removal of excisable goods, the period of limitation has to be 
computed from the date of knowledge, arrived at upon raids 
on the premises - Extended period of limitation would be 
G invokable as there was suppression of facts by the company 
with the intention to evade the excise duty. 
.. 
Evidence: Statement made before Central Excise 
1--
Officers - Admissibility of - Plea that statement made by the 
fl! 
Managing Director of the assessee-company was not reliable 
H 
902 
COMMISSIONER OF CENTRAL EXCISE, MUMBAI v. KALVERT 903 
FOODS INDIA Pvr LTD. 
··~ 
- Held: Statements of Managing Director of the company and 
A\ 
other persons were recorded by the central excise officers and 
they were not police officers, therefore, their statements 
containing all the details about the functioning of the company 
which could be made only with their personal knowledge could 
not have been obtained through coercion or duress or through. B 
-I 
dictation - These statements, therefore, can be relied upon. 
Trade Mark: Registered and unregistered brand name/ 
trade marks - Held: It is not necessary that "Brand name" 
should be compulsorily registered - A person can carry on c 
his trade by using a "Brand name" which is not even registered 
- But in violation/infringement of trade mark, remedy available 
would be distinctly different to an unregistered brand name 
"' 
from that of remedy available to a registered brand name. 
Respondent no. 1-company was engaged in the 
D 
manufacture of P & P Food Products, such as, assorted 
jams, pickles, squashes, cooking sauces, chutneys, 
syrups, synthetic vinegars etc. It was ·also trading in 
sugar, salt and pepper by packing them into small packs. 
Respondent no. 2 was the Managing Director of the 
E 
Company. 
On 22.11.2000, on receiving information that 
,,.8i • 
respondents were indulging in clandestine removal .of its 
finished P & P food products without payment of central 
F 
excise duty, the revenue authorities searched its factory 
premises. Searches were also carried out at the premises 
of its distributors/wholesale dealers/traders situated in 
and around Mumbai and other connected premises. 
During the search conducted at the premises of the 
G' 
respondent-company several incriminating documents, 
.. 
articles and records were found. A huge quantity of 
finished goods were also found tying in the factory 
premises. It was also noticed that there was one tempo 
parked inside the factory premises loaded with cartons 
containing the excisable goods manufactured by the 
H 
904 
SUPREME COURT REPORTS 
[2011] 9 S.C.R. 
A 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-
B company, 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 
c accounted for

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