2015 (10) TMI 1170 - AT - Central Excise

Duty demand - Wrong availment of SSi Exemption - Use of other s brand name - Held that - Trade Mark authority by Order No.TM-46/70/381, dt.31.12.2008, certified that M/s Harsh Industries, amongst others are registered as subsequent proprietor of Trade Mark HARSH as from 28.09.2000 by virtue of Deed of Assignment dt.31.03.2001. As the Trade Mark authority accepted that Respondent is proprietor of Trade Mark HARSH from 28.09.2000, then the demand of duty for the period 2003-04 to 2004-2005 on this ground is not sustainable. We have also noticed that the submissions of the Revenue before the Tribunal were refuted by the Respondent. Hence, there is no need to discuss all these things. - No reason to interfere with impugned order - Decided in favour of assessee.

Summary

Issues:
Revenue appeal against Commissioner (Appeals) order setting aside Adjudication order regarding duty, interest, and penalty on SSI exemption misuse and brand name use by Respondents.

Analysis:
The case involved the Revenue appealing against the Commissioner (Appeals) order that set aside the Adjudication order against the Respondents, who were manufacturing Power Driven Water Pumps. The issue revolved around the misuse of SSI exemption and the clearance of goods bearing another person's brand name. The Adjudicating authority had confirmed the duty demand, interest, and penalty, which was challenged by the Respondents before the Commissioner (Appeals).

The Revenue contended that the Respondents failed to produce the Deed of Assignment for brand name use during the investigation, only submitting it in response to the Show Cause Notice. They argued that the Respondents had shown the amount as royalty in their Income Tax return, revised after investigation, and applied for a change of ownership to the Trade Mark authority. The Revenue claimed that these actions should not be accepted as they were not done during the Department's investigation, asserting that duty demand should be upheld due to these discrepancies.

On the other hand, the Respondents' Counsel argued that a statement by a third party confirmed the Deed of Assignment between M/s Harsh Traders and M/s Harsh Industries for brand name use by the Respondent company. They highlighted that the Income Tax authority accepted the revised return and that the Deed of Assignment was verified by the investigating officer. The main defense was the certification by the Trade Mark authority, recognizing the Respondent as the proprietor of the brand name from a specific date, supported by a certified copy of the trade mark certificate.

After considering both sides and examining the records, the Tribunal found merit in the Respondents' arguments. They noted the Trade Mark authority's certification of the Respondent as the brand name proprietor from a particular date, rendering the duty demand for the relevant period unsustainable. The Tribunal also observed that the Revenue's submissions were refuted by the Respondents, leading to the rejection of the Revenue's appeal and upholding the Commissioner (Appeals) order. Thus, the Tribunal concluded that there was no justification to interfere with the lower authority's decision, ultimately dismissing the Revenue's appeal.