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TMI Blog2000 (9) TMI 940X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of Rule 173B, Rule 9 49 read with Rule 173F of Central Excise Rules, 1944 (hereinafter referred to as the Rules) inasmuch as the assessee have suppressed the material facts by not informing to the proper officer, at the time of filing the classification list that the goods manufactured and cleared by them were affixed with monogram of other person and thereby branding the goods prima facie with a view to evade the Central Excise duty leviable on the branded goods manufactured by them. They had not declared the fact of manufacture and clearance of the branded goods to the department. Thus, the assessee intend to discharge proper Central Excise duty by suppressing the fact and/or by misdeclaration and therefore proviso to sub-section (1) of Section 11A of the Central Excise Act, 1944 is invokable for demanding duty for the extended period beyond six months. 3. A show cause notice was issued by Commissioner, Central Excise Pune II on 28-1-1999 calling upon the assessee to show cause as to why the benefit of SSI exemption as claimed by the assessee vide various classification lists and declarations filed by them under Rule 173B from time to time, under Notification No. 1/93-C.E. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver had been the owner of brand name CYCLO. It can be established by number of documentary evidences called by the noticee from M/s. Cyclo Transmissions Ltd., M/s. Cyclo Motors Pvt. Ltd. and M/s. Cyclo Enterprises. M/s. Cyclo Enterprises was registered small scale unit and was availing small scale exemptions including exemption notification No. 175/86-C.E., dated 1-3-1986. On 1st June 1992 M/s. Cyclo Motors Pvt. Ltd. was incorporated with one of the main object of take over M/s. Cyclo Enterprises as a going concern with its assets and liabilities. In terms of main object of M/s. Cyclo Motor Pvt. Ltd., they took over on 1-4-1993 M/s. Cyclo Enterprises with all assets including trade mark and liabilities as on 31-3-1993. From the perusal of fixed assets schedules of both the companies it is very clear that the M/s. Cyclo Motor Pvt. Ltd. is the owner of the trademark. From the declarations filed as per notifications issued under Rule 174, by M/s. Cyclo Motor Pvt. Ltd. It will be seen that M/s. Cyclo Motor Pvt. Ltd. was entitled to claim SSI exemption under Notifications 1/93-C.E. and 7/97-C.E. They are also entitled to use the word CYCLO . In their own right as bona fide concurrent u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rers they insist to emboss manufacturer s identification mark on the product. Further, their identification mark i.e. CYCLO is quite different from the one that is used by M/s. Cyclo Transmissions Ltd. (i.e. CYCLO with arrow). In support of their contention they relied upon following case laws : (1) 1999 (111) E.L.T. 440 (Tri.) in the case of AGI Switches (P) Ltd. v. CCE, New Delhi. In this case the Hon ble Tribunal held that mere similarity in two brand names cannot be considered as a ground to attract provisions of para 7 of Notification 1/93-C.E. Benefit of exemption under the said Notification is available though the two brand names are similar but having a marked difference in their shape/figure/colour scheme and geometrical figures used in the brand name. (2) 1996 (83) E.L.T. 570 (Tri.) in the case of Forest Industries Pvt. Ltd. v. CCE, Belgaum. In this case the Hon ble Tribunal has held that affixation of others brand name on the manufactured goods is a pre-condition of para 7 of Notification 175/86 and hence brand name belonging to others used in invoices but not affixed on goods do not attract the provisions of para 7 of the said Notification. SSI exemption is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Merchandise Marks Act, 1958. In view of sub-section (3) of Section 12 of the said Act, in case of honest concurrent use or of other special circumstances which, in the opinion of the Registrar, make it proper so to do, he may permit the registration by more than one proprietor of Trade marks which are identical or nearly resemble each other (whether any such trade mark is already registered or not) in respect of the same goods or description of goods subject to such conditions and limitations, if any, as the Registrar may think fit to impose. 14. Lastly, they concluded that they had never any intention to evade Central Excise duty, which can be substantiated with the fact that they had paid Central Excise duty first time, on the goods cleared on the last day i.e. 31st March, 1992, which otherwise could have easily postponed in the next financial year. In view of their submissions, they requested to drop the show cause notice. 15. As assured by the assessee, at the time of personal hearing, they submitted further documentary evidence to support their contention on 20-9-2000. Findings : 16. I have carefully considered the submissions made by the assessee from time to time an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. CYCLO Transmissions are cycloidal speed reducers and this curve has no connection with the assessee s products which are checking/measuring instruments. There is no resemblance between the word/monogram used as CYCLO in capital letters by the assessee and the logo used on the products by M/s. Cyclo Transmissions Ltd. comprising of cycloidal arrow with word CYCLO . Therefore, the pre-embossment of shortened name i.e. CYCLO on the goods for identification of the product vis-a-vis manufacturer does not amount to manufacturing branded goods of another person especially in the absence of any evidence confirming that goods embossed with CYCLO were sold as goods manufactured for or on behalf of M/s. Cyclo Transmissions. In this context, the Hon ble S.C. in the case of M/s. Astra Pharmaceuticals (P) Ltd. has held that product mark or brand name (invariably a word or a combination of words and letter or numeral) is the one by which the product is identified and asked for a monogram which only identifies the manufacturer and would not make the goods branded one [1995 (75) E.L.T. 214 (S.C.)]. I also place reliance on the Hon ble CEGAT (West Regional Bench) decisions in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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