2008 (3) TMI 50 - SC - Central Excise

Goods cleared under the brand name Tetenal without payment of duty, claiming the benefit of exem. u/not. 175/86 investigation revealed that brand name doesn t belong to them but belong to their foreign collaborator - mis-stated & suppressed facts to evade duty extended period invokable tribunal is justified in remanding matter to re-determine duty as assessee contend that S.P. of the goods was the cum-duty price & they were entitled to deduct the duty from sale price to determine AV

Summary

Issues:
1. Benefit of exemption under Notification No. 175/86-CE for products cleared under the brand name "Tetenal."
2. Mis-statement and suppression of facts by the assessee with intent to evade payment of duty.
3. Applicability of extended period of limitation for invoking demand of duty.
4. Determination of assessable value of goods under Section 4(4) (d) (ii) of the Act.
5. Ownership of the brand name "Tetenal" and its impact on the eligibility for exemption.
6. Interpretation of the proviso to Section 11A(1) of the Central Excise Act, 1944.

Analysis:
The case involves two appeals, one by the Revenue and the other by the assessee, regarding the benefit of exemption under Notification No. 175/86-CE for products cleared under the brand name "Tetenal." The assessee, engaged in the manufacture of photographic chemicals, claimed exemption but was found to have mis-stated facts by using a brand name owned by a foreign collaborator. The Revenue imposed duty and penalty, leading to appeals and counter-arguments.

The central issue revolves around the mis-statement and suppression of facts by the assessee with the intent to evade duty payment. The Tribunal found the declaration regarding the brand name "Tetenal" to be false, as it belonged to the foreign collaborator. The extended period of limitation was invoked due to willful mis-statement, satisfying the conditions under the proviso to Section 11A(1) of the Act.

Another critical aspect is the determination of the assessable value of goods under Section 4(4) (d) (ii) of the Act. The Tribunal directed a re-determination considering the excise duty element in the sale price, as per relevant legal provisions and precedents. This decision was upheld, emphasizing the exclusion of duty from the sale price for excisable value calculation.

The ownership of the brand name "Tetenal" played a crucial role in assessing the eligibility for exemption under Notification No. 175/86-CE. The assessee's claim of owning the brand name was refuted, highlighting the deliberate attempt to misuse the exemption by falsely declaring ownership. The Tribunal's decision to dismiss the appeals was based on these findings, emphasizing the lack of merit in the arguments presented by both parties.

In conclusion, the judgment upholds the imposition of duty and penalty on the assessee due to misrepresentation and evasion of duty payment. The decision also affirms the correct application of legal provisions regarding the assessable value determination and the eligibility criteria for exemption under the relevant notification.