2016 (12) TMI 1119 - AT - Central Excise

Demand - SSI exemption - use of brand name of others - time bar - Held that - while clearance of the goods under exemption Notification No. 8/2000-CE the Department was having the knowledge that the product Ivomec Injection bearing the brand name of another person is being cleared. In such case nothing prevented the Department from issuing the show-cause notice within a period of one year, which Department has failed - Moreover from August, 2001 itself the appellant started paying duty without availing exemption, at least the Department could issue a show-cause notice immediately in August, 2001 and before 22.02.2002, but the show-cause notice was issued, much after all the disclosers were made on 04.11.2003 - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. SSI exemption denial under Notification No. 8/2000-CE due to using another person's brand name.
2. Limitation period for raising demand.
3. Suppression of facts by the appellant.
4. Appeal against the Order-in-Original.

Analysis:
1. The case involved the denial of SSI exemption under Notification No. 8/2000-CE to the appellant, a pharmaceutical products manufacturer, for using the brand name of another person, M/s Glaxo India Ltd. The appellant affixed the brand name on the products as per the agreement. The demand period was from 22.02.2001 to 10.08.2001. A show-cause notice was issued on 04.11.2003 proposing the denial of the exemption, which was confirmed in the adjudication. The appellant appealed against this decision after the Commissioner (Appeals) upheld the demand.

2. The appellant argued on the limitation issue, stating that they disclosed the use of the brand name in an agreement dated 09.08.2000, submitted to the Department on 22.02.2001. They started paying duty from 8th January, 2001, and submitted classification declarations on 16.02.2001, disclosing all manufacturing and clearance details. The appellant contended that there was no suppression of facts, and the demand was time-barred.

3. The Revenue representative argued that the appellant did not submit the agreement voluntarily but only after the Department's request, alleging suppression of facts. However, the Tribunal noted that regardless of the submission circumstances, the Department was aware of the brand name usage from the date the agreement was submitted. The Tribunal found no suppression of facts as the Department could have issued a show-cause notice within a year but failed to do so until 04.11.2003, after all disclosures were made.

4. The Tribunal concluded that there was no suppression of facts by the appellant, and the demand was time-barred under the proviso to Section 11A. As the appellant started paying duty without availing exemption from August 2001, the Department could have issued a notice earlier. Hence, the impugned order was set aside, and the appeal was allowed on the grounds of being time-barred. The judgment was pronounced on 26.09.2016.