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TMI Blog2002 (8) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... oods; that Commissioner under the impugned Order has denied the benefit of the small scale exemption, confirmed the demand of duty and imposed the penalty; that the Commissioner of Central Excise under the adjudication Order No. 3/CE/2000, dated 24-1-2000 denied them the benefit of small scale exemption on the ground that the goods manufactured and cleared by them were branded goods; that on Appeal filed by them the Appellate Tribunal vide Final Order No. 120/2001-V, dated 15-2-2001 remanded the matter to the Adjudicating Authority for readjudication after considering the decision of the Larger Bench of the Tribunal in the case of Prakash Industries v. CCE, Bhubneshwar 2000 (119) E.L.T. 30 and the decision of the Tribunal in the case of SA Industries and Boards Circular No. 71/71/94-CX, dated 27-10-94; that the Commissioner of Central Excise under the impugned Order has confirmed the demand of duty and imposed the penalty by denying the benefit of small scale exemption after holding that the decision in the case of Prakash Industries and SA Industries do not apply; that the Commissioner has also given a finding that the Board s Circular is not wholly applicable in the present matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l scale exemption cannot be denied; that this ratio is squarely applicable to the present case; that the similar views were held by the Tribunal in the case of SA Industries wherein it was held that if the branded goods are only supplied to the customers and not traded in the market, the use of the brand name is not in the course of trade. The goods involved is immaterial so long as the goods affixed with the brand name goes to the owner of the brand name who does not trade them in the market. Finally, learned Advocate submitted that entire demand is for the extended period of limitation which cannot be invoked as there was no suppression or mis-statement on their part; that the fact of supply of cable assembly to M/s. Fujitsu India was well within the knowledge of the Department as they were regularly submitting the copies of the gate passes/invoices along with the RT 12 returns; that the penalty under the Section 11AC of the Act can not be imposed as there is no suppression or mis-statement of fact; that they had also submitted a detailed drawing of the cable assembly on which the word Fujitsu India was clearly visible; that in any case the demand has been confirmed for the perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedure stipulated in Rule 56A had to be followed. Learned Consultant for the respondents has not been able to bring to our notice any material to show that this procedure was followed. Tribunal was therefore, wrong in allowing the Appeal of the respondents and directing that the benefit of the said notification be given to it. The learned Departmental Representative, therefore, contended that the benefit of the Notification will not be available as the condition stipulated in the Notification regarding following Chapter X has not been complied with by the Appellants while clearing the impugned goods. He also relied upon the decision of the Tribunal in the case of Pam Instruments Pvt. Ltd. v. CCE, Delhi-III, Final Order No. 264/2002-B, dated 31-5-2002 [2002 (148) E.L.T. 944 (Tribunal)] wherein the benefit of the small scale exemption Notification No. 9/99 was denied as procedure in Chapter X was not followed. The learned Departmental Representative also mentioned that the ratio of the decision in the case of Prakash Industries is not applicable inasmuch as the goods under consideration were not component parts which is so in the present matter. Finally, he submitted that the deman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d specifications of a particular manufacturer and sold to that manufacturer for his own use, the benefit of Notification No. 1/93 cannot be denied . The reasons advanced by the Adjudicating Authority for coming to the conclusion that particular circular does not cover the case of the Appellants are not convincing. The mere fact that the packing material used in relation to the specified goods had the same marking which Fujitsu India was using or the fact that the goods were being sent to the various sites to the factories of the Appellants do not indicate that the impugned goods were traded or indicate a connection in the case of trade between the specified goods and some person using such name or mark. We are of the view that the clarification issued by the Board in Circular dated 27-10-94 squarely covers the facts of the present matter. Further, the Larger Bench of the Tribunal in the case of Prakash Industries, after referring to Board s Letter F. No. 345/35/87-TRU, dated 29-10-87 and Board s Circular dated 27-10-94 and the decisions of the Tribunal in the case of CCE, Bombay v. Bright Engineering Company - 1999 (112) E.L.T. 885 (T) = 1998 (28) RLT 530, Model Soap Company v. CCE ..... X X X X Extracts X X X X X X X X Extracts X X X X
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