2014 (5) TMI 27 - HC - Central Excise

Waiver of pre-deposit - SSI exemption - remote area - both the appellants use the same trademark - MOU not presented to assessing officer - Financial incability - Held that - Tribunal has held to the contrary by holding that failure of the appellant to produce the MOU before the Tribunal and before the Assessing Officer, does not entitle the appellants to similar relief. As there is no denial that the trade mark is being used in common by both appellants, the learned Tribunal should have considered this aspect - Following decision of C.C.E., Chandigarh v. Bhalla Enterprises 2004 (9) TMI 109 - SUPREME COURT OF INDIA - Decided in favour of assessee.

Summary

Issues:
Adjudication of a similar question of law regarding different orders by the Tribunal in similar circumstances.

Analysis:
The judgment involves the disposal of Central Excise Appeal Nos. 45 and 46 of 2013, addressing the key issue of whether the Tribunal could pass different orders in similar circumstances. The appellant argued that the financial hardship and common trademark use were not adequately considered by the Tribunal. The appellant highlighted that the Memorandum of Understanding (MOU) was not produced before the Assessing Officer, but it was deemed irrelevant as there was no requirement to do so at that stage. Additionally, the appellant contended their financial inability to pay the demanded amount.

The Revenue's counsel, on the other hand, defended the Tribunal's decision, stating that the Tribunal had already accepted the appellant's stay application by reducing the pre-deposit amount to 50% of the demand. The Revenue argued that the Tribunal's order was not arbitrary or perverse and did not warrant interference.

Upon reviewing the impugned order, the Court noted that the Tribunal had indeed reduced the pre-deposit amount to 50% of the total. However, referencing a previous case law, the Court highlighted the importance of common trademark use by different entities. Citing the judgment of the Hon'ble Supreme Court in a specific case, the Court emphasized that if the appellant could demonstrate no intention of connection through the trademark use, they could be entitled to exemption.

The Court found that the Tribunal had not adequately considered the common use of the trademark by both appellants and had erred in its decision. Consequently, the Court allowed the appeal, set aside the impugned order, and directed the application for waiver of pre-deposit to be reconsidered by the Tribunal in accordance with the law. The parties were instructed to appear before the Tribunal on a specified date for further proceedings.