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TMI Blog2002 (2) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Self Inking Rubber stamps with the brand name PERMA which goods were seized under a Mahazar from the factory premises on 29-9-92 and statements of various persons were recorded. The allegation is that the said item falls under the Heading 9611.00 and the appellants evaded payment of duty and had suppressed the vital information regarding usage of brand name, receipt of goods under Rule 173H and by clearing the goods under parallel set of invoices. 2. The Commissioner has relied on the statements made by the proprietor and the officials of the appellants to hold that they had an understanding with the foreign company by name M/s. Porlon Corporation, USA and were affixing their brand name PERMA on their products and this fact had be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty even defective stamps received. 5. We have heard ld. Counsel, Shri R. Raghavan for the appellants and Shri G.S. Menon, ld. SDR for Revenue. 6. The contention of the ld. Counsel is that Rule 9(2) cannot be invoked as the said rule pertains to clearances made on the allegation of clandestine removal surreptitiously without due intimation to Department and without payment of duty. In the present case, it is his contention that they had filed classification lists and the goods had been cleared under RT-12 returns and on invoices, on due payment of duty. The Department was fully aware of the fact of appellants having manufactured the goods under the brand name of PERMA . He produced a show cause notice dated 20-10-86 issued by the Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d got the same registered in their name, and that the department officials were fully aware of its use, therefore, they were not required to give any further information. The Department cannot allege suppression to invoke larger period. It is his further plea that circumstances of use of brand name owned by them and incidentally also by the foreign company even if they had entered into in collaboration would be eligible for the benefit of notification as they were SSI unit. He pointed out that this was the disputed question of law and Tribunal judgments were both for and against the parties on this issue, till the issue was sorted out before the Larger Bench. Therefore, it cannot be alleged that appellants have suppressed material facts wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on from their statements. As the brand name of the foreign company had been used, it clearly disentitles them from benefit of SSI notification. He also referred to findings in para-29.8 and in Para 32 of the Order. 8. Countering the arguments, ld. Counsel submitted that the submission now made were all facts which are available with the Department and known to Department and the facts are not brought to the notice of the Department for the first time. He also reiterated the submission made and contended that there is no nexus between foreign brand name and the name used by them as they were not the same as the one which was used by American Company was PERMA , while their brand name as PERMA STAMP with a different design and ownership ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings on this very allegation. The Commissioner has not examined this question of material facts which were within the knowledge of the Department. Therefore, it is but proper that the matter is sent back to the Commissioner to re-examine the issue on time bar as the appellants contend that the Department was fully aware of facts as per show cause notice of 20-10-86 culminating in OIO No. 20/87. It has also been stated that there was bona fide belief held by them that merely because the foreign company also had similar brand name PERMA that by itself does not disentitle them from claiming the benefit and in view of the fact that ownership of the said brand name was held by them and had got it registered under the Trade and Merchandise M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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