9911796707
TMI Blog2002 (12) TMI 561X X X X Extracts X X X X X X X X Extracts X X X X ..... ficers of Ahmedabad-I Commissionerate searched the factory premises of the applicant on 18-11-97 and 19-11-97. During the course of search they found 149 plastic tanks of capacity exceeding 300 Ltrs valued at Rs. 7,08,393/- bearing brand name National, lying in factory premises. The scrutiny of records seized and further investigations revealed following facts :- (a) The applicant was registered under Central Excise Act, 1944 during the period 1993-94 and 1994-95; (b) The applicant had surrendered it's licence during 1995-96 as its turnover of dutiable goods was below the limit prescribed for small scale unit i.e. of Rs. 30 lac. He filed declaration for the period 1995-96 but did not file any declaration for the period 1996-97 and 1997-98; (c) During the period 1994-95 to 1997-98 the applicant had cleared plastic tanks of capacity exceeding 300 Ltrs; totally worth Rs. 2,56,88.472/- (including value of tanks seized at customers places) however had shown clearances of the same as Rs. 1,08,33,503/- only, manipulating his record, by showing clearances of tanks of capacity below 300 Ltrs. (d) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod 1994-95 to 1997-98. (b) Use of 'National' brand name during 1994-95 was denied and it was claimed that during 1994-95 he had used his own Brand name 'Nation'. For 1995-96 to 1997-98 he accepted use of 'National' brand name, as alleged in SCN. c) He claimed deduction on account of sales tax paid during 1995-96 to 1997-98. (d) He claimed to treat remaining amount as cum-duty price. (e) For 1994-95 he claimed SSI benefit. (f) For 1995-96 to 1997-98 he did not claim SSI benefit but claimed Modvat credit of Rs. 29,31,024/-. (g) The duty of Rs. 1,57,549/-, demanded for undervaluation of goods, was accepted as payable. 7. The Commission directed Revenue to submit the record relied upon in the case for scrutiny. On receipt of certain record from the Revenue, the Commission directed Commr.(Inv.) and Revenue to submit Report on certain points. 8. Commissioner (Inv.) submitted investigation Report on 25-1-2002, inter alia, suggesting that no Modvat credit can be granted to the applicant since the applicant had failed to fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the applicant vide letter dated 22-8-2002 submitted as follows :- (a) The Modvat credit has been correctly claimed by the applicant and same is admissible to him. (b) The applicant admit the use of brand name 'National' during 94-95 also. (c) Since the brand name 'National' is not a registered brand name of any person, the applicant is eligible for SSI benefit though using the said brand name. (d) In case Commission is not inclined to grant Modvat credit, the applicant is prepared to pay duty without Modvat credit but with SSI benefit. (e) Taking into consideration, the deduction on account of sales tax paid and then treating remaining amount as cum duty price, the applicant accepted to pay total duty of Rs. 22,14,921.40 as payable. 15. The Advocate's letter was sent to Revenue for comments. The Revenue vide Report dated 26-9-2002 opined that the applicant was neither eligible for Modvat credit not for SSI benefit. 16. The hearing fixed in the matter was adjourned to 27-11-2002 and then to 24-12-2002, on applicant's request. 17. The final heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after six month from the date of issue of modvatable invoices, it has been discussed in the Interim Order No. 63/CEX/2002 dated 16-8-2002 where in the Modvat Credit has been disallowed. Since a view has already been taken by the Commission on this issue, it is not necessary to counter the same once again. As regards the claim of the applicant for the SSI exemption Revenue drew Commission's attention towards Shri J.A. Patel's statement dated 13-5-98 in the capacity of the partner of M/s. National Plastics Ahmedabad when shown a letter dated 29-4-94 of M/s. National Plastics addressed to the Superintendent C.Ex Range- II, Division - II, Ahmedabad, (wherein M/s. National Plastics have declared that ownership of the said brand is that of National Plastics) confirmed that 'NATIONAL' brand is owned by M/s National Plastics, Ahmedabad. Their argument at this stage that the said brand is not owned exclusively by any body is an afterthought and hence not acceptable." 24. The Revenue also filed a copy of the judgment in the case of Micro Nova Pharmaceuticals (P) Ltd. v. Commissioner of Central Excise, Bangalore -1997 (92) E.L.T. 172 (Tribunal). 25. The contention of the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deprive a unit of the benefit of the small scale exemption scheme. This applies not only to locks but to all other goods specified in Notification No. 1/93-C.E. 33. The Tribunal while deciding the case of M/s. Hem Paints Pvt. Ltd., [2001 (129) E.L.T. 129 (Tri. - Mum)] has analysed the legal position in this regard. The observations of the Tribunal are reproduced below : "The department does not challenge the finding of the Commissioner (Appeals) that it is use, and not ownership, of the brand name, which is to be considered in deciding whether or not paragraph is attracted. Paragraph 4 of the notification provides that "The exemption contained in this notification shall not apply to the specified goods, bearing the brand name or trade name (registered or not) of another person." The Commissioner (Appeals)'s view is thus clearly wrong, and neither the counsel for the manufacturer, nor the Departmental representative, supports it. The appeal emphasis that the affidavit filed by the partner of M/s. J.K. Brothers is insufficient to conclude that the ownership of the brand name ceased to vest with M/s. J.K. Brothers. Before confronting this question, another has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that if a brand name was not owned by any particular person, the use thereof will not deprive a unit of the benefit of the SSI exemption scheme and this clarification applies to all goods specified in Notification No. 1/93-C.Ex. This very clarification was relied upon by the CEGAT in the case of Hem Paints Pvt Ltd. wherein it was held that when a brand name remains in the public domain and anyone is free to use the same, the SSI exemption Notification No. 1/93-C.EX. cannot be denied. 37. The judgment referred to by the Revenue in the case of Micro Nova Pharmaceuticals (P) Ltd. does not apply to this case inasmuch as that in case of Micro Nova, they were using the brand name which was exclusively owned by Micro Labs. The case before us is a case where the brand name 'National' seems to be freely usable by all and sundry because this is the name not registered by any particular individual, firm or company. 38. Since the applicant is entitled to the SSI exemption Notification No. 1/93-C.EX. right from 94-95 to 97-98, the duty liability in this case would work out to Rs. 20,57,372/- after taking into account, the benefit of the said notification and after treating the valu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
