2008 (3) TMI 559 - AT - Central Excise

Summary

Issues:
Waiver of pre-deposit of duty, Eligibility for S.S.I. exemption, Brand name ownership dispute, Compliance with trademark registration, Prima facie case for total waiver determination.

Waiver of Pre-Deposit of Duty:
The case involved an application for the waiver of pre-deposit of duty amounting to Rs. 60,25,468 confirmed against M/s. DAV Electronics & Electricals Pvt. Ltd. (DEEPL) along with penalties on its Director and Executive Director. The duty demand arose due to the denial of the S.S.I. exemption claimed by DEEPL for the period from October 2001 to May 2006. The Tribunal found that DEEPL did not establish a strong prima facie case for total waiver and directed a pre-deposit of Rs. 20.00 lakhs towards duty within eight weeks, with the balance of duty and penalties dispensed with upon such deposit, subject to compliance within the specified timeline to avoid vacation of stay and dismissal of appeals.

Eligibility for S.S.I. Exemption:
The issue of eligibility for the S.S.I. exemption revolved around DEEPL's claim that they were entitled to the exemption for supplying control panel accessories to OE manufacturers. However, the Tribunal noted that this argument was not raised during the show cause notice or before the Commissioner, thus precluding a finding on this aspect. Consequently, the plea for exemption based on supplying to OE manufacturers could not be considered at that stage of the proceedings.

Brand Name Ownership Dispute:
The dispute over brand name ownership centered on the use of the 'DAV' logo by DEEPL, which was registered in the name of DAV Industries in 2004. DEEPL contended that their application for registration was pending and that the logos were different. However, the Tribunal found that the logos were identical or deceptively similar, leading to a prima facie determination that the brand name exclusively belonged to DAV Industries. The registration application by Shri A.K. Agrawal, not DEEPL, further weakened DEEPL's claim regarding the brand name ownership.

Compliance with Trademark Registration:
DEEPL's argument that the registration application for the 'DAV' logo was pending did not hold as the registration was in DAV Industries' name. The Tribunal found that DEEPL's use of a logo similar to the registered one constituted a prima facie case against them. The distinction between the logos used by DEEPL and DAV Industries was not considered tenable, strengthening the case for brand name ownership by DAV Industries.

Prima Facie Case for Total Waiver Determination:
In evaluating the totality of facts and circumstances, the Tribunal concluded that DEEPL failed to establish a strong prima facie case for a total waiver of the duty and penalties. Consequently, a partial pre-deposit of Rs. 20.00 lakhs was directed, with the remaining duty and penalties waived upon compliance. Failure to adhere to the directive would lead to the vacation of stay and dismissal of appeals without prior notice, emphasizing the importance of timely compliance. Compliance reporting was scheduled for a specified date to monitor adherence to the Tribunal's order.