2015 (10) TMI 43 - HC - Central Excise

Denial of SSI Exemption - whether the respondent was entitled to the benefit under the Notification No. 1/93-C.E., dated 28-2-1993 - Reopening of assessment u/s 11A - 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 excise duty exemption by the respondent.
2. Reopening of assessment by Deputy Commissioner 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. Justification for reopening the case under Section 11A of the Act.
6. Admissibility of respondent's claim for exemption based on brand name assignment.
7. Tribunal's decision and appeal under Section 35G of the Central Excise 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. for its product "Virkon-S" cleared in 1993-94 and 1994-95. The Deputy Commissioner reopened the assessment, leading to a demand for differential duty of Rs. 7,79,430, which was confirmed in an order dated 28-1-1997.

2. The respondent appealed the order, which was dismissed by the Commissioner on 30-7-2001. Subsequently, the Tribunal allowed the appeal citing a Supreme Court judgment. Dissatisfied, the Department filed an appeal under Section 35G of the Central Excise Act.

3. The main issue revolved around whether the respondent was entitled to exemption under the 1993 notification. The Deputy Commissioner's basis for reopening the case was the usage of the brand name "Virkon-S," owned by a UK company. The notification's Clause (4) excluded specified goods bearing another's brand name from exemption.

4. The complexity arose from whether mere use of a brand name would disqualify the exemption claim. The Government clarified through Explanation X that goods bearing another's brand name, when manufactured by the assessee, do not automatically belong to the other manufacturer. The focus was on the actual manufacturing activity rather than brand usage.

5. The respondent asserted proper assignment of the brand name, supported by evidence in classification returns. The Tribunal upheld the claim, emphasizing the necessity of substantial evidence for reopening under Section 11A. Mere differing interpretations were insufficient grounds for such action.

6. Consequently, the Court dismissed the appeal, affirming the Tribunal's decision. The respondent's legitimate manufacturing activity, coupled with brand name assignment, validated the exemption claim under the notification.

7. The judgment highlights the significance of manufacturing activity over brand name usage in excise duty exemption cases, emphasizing the need for conclusive evidence to challenge such claims under relevant legal provisions.