2010 (9) TMI 1023 - AT - Central Excise

Summary

Issues Involved:
1. Denial of benefit under Notification No. 8/2003-C.E., dated 1-3-2003.
2. Confiscation of goods, imposition of redemption fine, and penalty.
3. Invocation of extended period of limitation for initiating proceedings.

Issue-Wise Analysis:

1. Denial of Benefit under Notification No. 8/2003-C.E., dated 1-3-2003:
The primary contention revolves around the violation of condition No. 4 of the said Notification, which stipulates that the exemption will not be available to specified goods bearing a brand name or trade name of another person. The appellants argued that the use of the logo 'NUCON' was solely for identification purposes and did not constitute the use of a brand name or trade name. They cited the decision in Nirlex Spares Pvt. Ltd. v. Commissioner of Central Excise, where the Apex Court ruled that a brand name not owned by any particular person does not deprive a manufacturer of the small-scale exemption benefit. However, the Department contended, relying on the Grasim Industries case, that the logo 'NUCON' indicated a connection between the product and M/s. Nucon Industries Pvt. Ltd., thereby violating condition No. 4 of the Notification.

The Tribunal noted that the term "brand name" or "trade name" is defined to include any name or mark used to indicate a connection between the specified goods and some person. The Tribunal upheld the Department's view, stating that the use of 'NUCON' on the products indicated a connection with M/s. Nucon Industries Pvt. Ltd. and thus violated condition No. 4 of the Notification. The Tribunal concluded that the appellants were not entitled to the benefit under Notification No. 8/2003-C.E.

2. Confiscation of Goods, Imposition of Redemption Fine, and Penalty:
In Appeal Nos. E/1170 and 1171/2005, the Commissioner (Appeals) confirmed the Adjudicating Authority's order denying the benefit of the Notification and modified the order regarding confiscation of goods, redemption fine, and penalty. The Adjudicating Authority had confirmed the demand of duty amounting to Rs. 74,936/- with interest and an equal amount of penalty, apart from ordering the confiscation of seized goods valued at Rs. 4,68,350/-, with an option for redemption on payment of Rs. 40,000/- as redemption fine, and imposed a penalty of Rs. 20,000/- on M/s. Nucon Industries Pvt. Ltd.

In Appeal Nos. 328 and 329/2008, the Commissioner (Appeals) dismissed the appeal regarding the denial of the benefit of the Notification but allowed the appeal concerning the claim of benefit of cum-duty price, directing it to be worked out afresh along with interest and penalty under Sections 11AB and 11AC of the Central Excise Act, 1944. The Adjudicating Authority had confirmed the demand of duty amounting to Rs. 11,94,265/- with interest and an equal amount of penalty, besides imposing penalties of Rs. 5,000/- on M/s. Nucon Industries Pvt. Ltd. and Rs. 50,000/- on Shri K.K. Preman, Assistant Manager of M/s. Nucon Industries Pvt. Ltd.

3. Invocation of Extended Period of Limitation for Initiating Proceedings:
The appellants in M/s. Nucon Marketing & Services Pvt. Ltd. case disputed the invocation of the extended period of limitation, arguing that there was no suppression or fraud to justify it. The Department argued that the conduct of the appellants and their uncooperative attitude during the investigation justified the invocation of the extended period. The Tribunal noted that the facts on which the action was based were known to the Department as early as 2003, and the extended period of limitation could not be justified merely because the investigation concluded in 2006. The Tribunal found no justifiable reason for the delay in initiating proceedings and held that the extended period of limitation was not justified.

Conclusion:
The appeals failed on merits regarding the denial of the benefit under Notification No. 8/2003-C.E. and the associated penalties and fines. However, the appeals in E/328 and 329/2008 succeeded on the point of the bar of limitation, and the impugned orders were set aside with consequential relief. Appeals Nos. E/1170 and 1171/2005 were dismissed.