2008 (12) TMI 596 - AT - Central Excise

Summary

Issues:
1. Whether the term 'advance make' can be considered a brand name for small scale exemption.
2. If 'advance make' is deemed a brand name, whether it belonged to a third party.

Analysis:
1. The appellant contested that treating 'advance make' as a brand name lacked basis as no clear charge was presented against them regarding the use of a brand name for goods clearance. The appellant argued that the documents collected by Revenue, like pamphlets and certificates, were insufficient evidence. They emphasized that the goods were cleared with a trade mark, and the issues framed did not align with the show cause notice, rendering the adjudication baseless.

2. The appellant's representative further argued that the Authority's findings lacked a proper opportunity for defense and that the mere allegation of using a brand name was unfounded. They pointed out discrepancies in the evidence presented by the department and highlighted that no clear case was made regarding the use of 'advance make' as a trade mark on goods. The appellant contended that the first Appellate Authority erred in concluding that the brand name was used without any prior charge or evidence of its existence.

3. On the other hand, the Departmental Representative asserted that the appellant, along with another company, had indeed used the brand name 'advance' for goods clearance. Referring to statements and documents, they argued that the term 'advance' was consistently used as a brand name by the appellant and another company, indicating a lack of entitlement to the Small Scale Industry (SSI) exemption benefit.

4. During the hearing, the Departmental Representative highlighted additional evidence, including statements and certificates, to support the claim that 'advance' was used as a brand name by the appellant and another company. They emphasized the consistent use of the term 'advance' on products and containers, supported by official declarations and certificates.

5. After considering the arguments from both sides, the Tribunal decided to remand all appeals to the Adjudicating Authority for a thorough examination of the existence and use of the brand name 'advance' by the appellants. The Authority was directed to analyze all evidence, statements, and declarations to determine the ownership and usage of the brand name, ensuring a fair hearing and proper decision-making process.

6. The Tribunal emphasized the need for a detailed investigation into the connection between the appellants, the brand name 'advance,' and any agreements related to its use. The decision to remand the appeals was made to allow the appellants to present legal arguments and evidence while ensuring a fair opportunity for a hearing and a just decision based on the facts presented.