2015 (9) TMI 977 - HC - Central Excise

SSI Exemption - assignment to use the brand name - whether the respondent was entitled to the benefit under the notification, dated 28-2-1993 - Held that - as long as an assessee has manufactured the goods, the mere fact that he used the trade or brand name of another individual does not make any difference. This may take in its fold the case of assignment of the trade mark. Even otherwise what becomes essential is the activity of manufacture of the product, than mere usage of brand name. - respondent clearly pleaded that it has the proper assignment to use the brand name. The fact that it has got the assignment from the UK company was made clear in the returns of classification. The authority, who processed them was satisfied about this. There must be clinching evidence for reopening the case under Section 11A of the Act. The mere fact that a different view is possible on the same set of facts cannot be a ground to exercise power under that provision. There is no dispute that it has manufactured the product by itself. The Tribunal followed the judgment of the Supreme Court 2003 (8) TMI 49 - SUPREME COURT OF INDIA and we do not find any basis to interfere with the same. - Decided against Revenue.

Summary

Issues:
1. Claim of small scale industry status and exemption of Excise duty.
2. Reopening of proceedings based on brand name usage.
3. Interpretation of Central Excise Tariff Notification No. 1/93-C.E.
4. Application of Explanation X to the notification.
5. Assessment of proper assignment of brand name.
6. Validity of reopening the case under Section 11A of the Act.

Analysis:
1. The respondent, a disinfectant manufacturer, claimed small scale industry status and Excise duty exemption under Central Excise Tariff Notification No. 1/93-C.E. The product 'Virkon-S' was cleared between August 2000 and December 2001. However, a show cause notice was issued demanding a differential duty, leading to penalty imposition by the Additional Commissioner, later dropped.

2. The appellant challenged the order, leading to an appeal before the Commissioner, then the Customs, Excise and Service Tax Appellate Tribunal, which allowed the appeal citing a Supreme Court judgment. The Department then appealed under Section 35G of the Central Excise Act.

3. The main issue revolved around the respondent's entitlement to the notification benefits. The controversy arose when the Additional Commissioner reopened the case, contending that 'Virkon-S' bore a brand name owned by a UK company, potentially disqualifying the exemption.

4. The notification's Clause (4) stated that exemption doesn't apply to goods bearing another's brand name. The government's Explanation X clarified that mere usage of another's brand name doesn't negate an assessee's claim to exemption, emphasizing the actual manufacturing activity over brand usage.

5. The respondent asserted proper assignment of the brand name, supported by evidence in returns of classification. The authority processing them acknowledged this, emphasizing the necessity of substantial evidence for reopening under Section 11A.

6. The Court upheld the Tribunal's decision, emphasizing the respondent's manufacturing activity and valid brand name assignment. Dismissing the appeal, it highlighted the importance of evidence and manufacturing over brand usage in claiming exemption benefits, concluding the case without costs.