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TMI Blog1993 (8) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... Order No. 58/93, dated 23-2-1993 earlier passed would require modification in as much as the demand raised would be hit by limitation. The documents sought to be introduced are the following : (i) Letter OE. No. 1153, dated 17-8-1989 from the Supdt. of Central Excise, Amberpet Range. This letter contains an endorsement by Shri Apparao who was officer in charge of excise and administration. He died about 9 months ago. (ii) Letter No. OE. No. 1230, dated 18-8-1990 from the Supdt. of Central Excise, Amberpet Range. This letter contains an endorsement by Shri Apparao who was officer in charge of excise and administration. He died about 9 months ago. (iii) Letter AW/89-90, dated 27-9-1989 with enclosures submitted by the Supdt. by the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plea regarding the location of the two units and the jurisdiction aspect as pleaded by the learned Advocate. 2. The learned Advocate pleaded that since the whole issue could be decided on the ground of limitation the appeals could be disposed of on this short point itself. With the consent of both the parties the appeals are, therefore, heard on the ground of limitation. Appeals 3. The learned Advocate pleaded that the Department was all along aware of the use of the brand name `Asoka by M/s. Asoka Wafers, the appellants and M/s. Asoka Biscuits the other company to whom the brand name is stated to belong. He pleaded that the appellants had given a correct declaration while availing the benefit of the Notification No. 175/86 and had i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .T. 472 in support of his plea. 4. The learned S.D.R. pleaded that it was within the knowledge of the appellants that a sister concern of theirs was manufacturing the biscuits with `Asoka brand name and they should have mentioned this fact in the classification list and in the declaration filed. Not having done that he pleaded the appellants as held by the learned lower authority should be taken to have suppressed the fact. He further pleaded that the fact that the two units are in the proximity of each other does not by itself should be taken as circumstance attributing knowledge to the authorities about the use of the brand name `Asoka belonging to the other by the appellants. He pleaded primarily it was the duty of the appellants to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Asoka Biscuits. The learned Lower Authority has, however, on question of suppression of fact and invoking the longer period of limitation by issuing the show cause notice has laid lot of emphasis on the declaration filed by the appellants in the classification list which as reproduced in the learned lower authority s order is as under : We declare that the brand name `Asoka for wafers belongs to us and any other goods sold under the same brand name have no concern with each branded goods. We further declare that we do not have any proprietary interest in any factory manufacturing excisable goods and the total value of clearances during the preceding financial year was Rs. 6,81,175. Particulars of other factories held by the assessee is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notification clearly disentitles only those who use the brand name of other person meaning thereby that the brand name should belong to any other person. Be that as it may, without going into this aspect, since we are on a short question of limitation it is interesting to reproduce the observation of the learned lower authority in the finding : I have already held that the wafers are a kind of biscuits only and this fact is within the knowledge of the assessee. The least that is expected of the assessee, particularly when they are aware that the same product is manufactured by another firm of which they are partners, is to bring this fact to list. Had they done so, the Department would have realised that the assessees cannot avail o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the use of the brand name `Asoka on their products. The officers, as seen from the documents, filed before us had also on 17-8-1989 and 27-8-1989 addressed to the appellants calling for the wrappers used by the appellants and the appellants had supplied the copies of the same. The learned SDR, however, in this regard stated that the Department was also investigating as to whether wafers and biscuits are the same article. If that be so there is nothing wrong in the appellants assuming that their product was different from that of the other firm, viz. Asoka Biscuits. Both the Department and the appellants appears to have been labouring under the misconception that only when the brand name used is that of the same product the goods would fal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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