9911796707
TMI Blog2005 (4) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... ants manufacture Water Purifying Machine in foreign collaboration with M/s. Comparia Europea Del Aqua S.A. which holds 51% of equity and avail of small scale exemption Notification No. 8/99-C.E., dated 28-2-1999; that the Central Excise duty has been demanded and penalties have been imposed on the ground that they are clearing the impugned goods bearing brand names Aqua Pure and Aqua Vita which are brand names of M/s. Modi Hoover International Ltd. and their foreign collaborator respectively. The learned Advocate fairly mentioned that the duty of excise is payable by them in respect of goods bearing the brand name Aqua Pure belonging to Modi Hoover International Ltd. He, however, submitted that the quantification of duty is only dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment that brand name Aqua Vita belongs to their foreign Collaborator and they are paying royalty to the Spanish Company for use of brand name. He mentioned that as per the Joint Venture Agreement, the Appellants are to pay royalty to the Spanish Company on the sales made by them in lieu of technical know how provided by the Spanish Company and not for any brand name used by them; that the brand name used by the Spanish Company is B1OLUX and not Aqua Vita as stated by Shri Sandeep; that Shri Jose Manuel, Managing Director who represents the Spanish Company, has affirmed in his Affidavit that Spanish Company do not use brand name Aqua-Vita on their product in Spain nor they are the owners of the said brand name. Their brand name is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter will be produced later on. The learned SDR emphasized the fact that one of the signatory to Joint Venture Collaboration Agreement is Shri Sandeep and as such he is in-know of these details. Regarding cum-duty price, the learned SDR relied upon the decision of the Supreme Court in the case of Assistant Collector of Central Excise v. Bata India Ltd., 1996 (84) E.L.T. 164 (S.C.) wherein the Supreme Court has held that if a manufacturer includes in the wholesale price any amount by way of tax, even when no such tax is payable, then he is really including something in the price which is not payable as duty at all...... In such a situation, there cannot be any question of deduction of duty payable on the goods from the wholesale price ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vita belongs to the foreign collaborator of the Appellants. The Appellants are at liberty to adduce any material/evidence they deem fit in this regard. 6. As admittedly brand name Aqua Pure belongs to M/s. Modi Hoover International Ltd., the Appellants are not eligible to avail the benefit of exemption Notification No. 8/99 in respect of Water Purifying Machines bearing the brand name Aqua Pure . There is force in the submission of the Learned Advocate that they had imported the impugned goods and sold the same in India before commencing their manufacturing activities. They have brought on record both the Bills of Entry under which the goods were imported. Revenue, except presuming, has no material or evidence to show that what was i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
