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TMI Blog2010 (2) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... President (Oral)]. Heard at length learned Advocate for the appellants and learned DR for the respondent. Since common questions of law and facts arise in both these appeals, they were heard together and are being disposed of by this common order. 2. The appeals arise from the order dated13-3-2009passed by the Commissioner of Central Excise, Jaipur. By the impugned order, the duty demand to the tune of Rs. 71,85,555/- has been confirmed against the appellants while directing payment of interest thereon and has also imposed penalty of equal amount. Further penalty of Rs. 10 lakhs (Rs. ten lakhs) has been imposed on the Director Shri Brahm Dutt Modi. 3. The appellants company is engaged in manufacture of Ordinary Portland Cement falling under sub-heading 25231910 of the first schedule of the Central Excise Tariff Act, 1985 from clinker which is either manufactured in its own factory or procured from outside. In the course of the audit of the records maintained by the appellants carried out in the month of October 07, it was observed that the appellants had been manufacturing Ordinary Portland Cement and had been paying concessional rate of duty by availing the benefit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hree grounds. Firstly the records do not justify invokation to the extended period of limitation and therefore, the claim is partly time barred. Secondly the authorities could not have denied the benefit of exemption under Notification No. 4/06-C.E., dated1-3-2006, in view of the fact that the owner of the brand name had duly assigned the right to use the brand name by the appellants for their product. Thirdly the Commissioner could not have confirmed the demand based on second show cause notice in relation to the same period. Reliance is sought to be placed in the decision in the matter of Larsen Toubro Ltd. v CCE, Pune-III reported in 2007 (211) E.L.T. 513, Pahwa Chemicals Private Ltd. v. CCE, Delhi reported in 2005 (189) E.L.T. 257 (S.C.) and Gopal Zarda Udyog v. CCE, New Delhi reported in 2005 (188) E.L.T. 251 (S.C.) in relation to the point raised pertaining to bar of limitation. Reliance is placed in the decision in the matter of CCE, Goa v. Primella Sanitary Products reported in 2005 (184) E.L.T. 125 (S.C.) and CCE, Chennai v. Sree Ram Perfumery Works reported in 2009 (241) E.L.T. 89 in relation to the entitlement for benefit under the Notification and in the matter of CCE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lusion and finding and the same do not warrant any interference. 8. As regards the first ground of challenge undoubtedly the period involved in the matter is from July, 2006 to January, 2008 and the first show cause notice was issued on9-1-2008whereas the second show cause notice was issued on15-5-08. If we peruse both the show cause notices and the impugned order, it is apparent that the first show cause notice was issued in relation to the failure on the part of the appellants to submit the required declaration under the said notification in order to enable manufacturer to avail the benefit thereunder. The condition 1(i) in the Annexure to the said notification clearly reads thus - If the cement manufacturer makes a declaration to the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, having jurisdiction regarding the installed capacity of the factory before availing of exemption under this notification or wherever there is a change in the said capacity, and furnishes such information or documents, if any, as may be required by the Deputy Commissioner or the Assistant Commissioner, as the case may be, for his satisfacti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, it cannot be said, as rightly observed by the Commissioner that there was valid and lawful declaration by the appellants under the said notification to claim the benefit thereunder. Obviously the Condition 1(i) of the Notification does not appear to have been complied with by the appellants. 11. Besides, the fact that the declaration was claimed to have been sent under Postal Certificate to the Excise Officer on 1-1-2008, obviously proves that there was no declaration prior thereto. This fact was also brought to the notice of the Department in the reply filed to the show cause notice. In such circumstances, it is difficult to accept the contention on behalf of the appellants in relation to first show cause notice. 12. As regards the second show cause notice, the same was issued in relation to the use of brand name of another person for the product manufactured and cleared by the appellants while claiming exemption under Notification No. 4/06. On the face of the show cause notice itself, it reveals that the fact that the name Kamdhenu was the brand name of another person was revealed to the Department for the first time in February, 2008 when the statement of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not in dispute that Kamdhenu Cement is a brand name of Kamdhenu Ispat Ltd. In fact having admitted so, they have even produced copy of the agreement entered into between the appellants and M/s. Kamdhenu Ispat Ltd. for that purpose. 15. The right of the appellants to use the said brand name pursuant to the agreement between the parties cannot entitle the party to contend that it ceased to be the brand name of another person or that it would become an exclusive brand name of the manufacturer. The agreement between manufacturer and the owner of the brand name may entitle the manufacturer to use such brand name for his product without any objection from the owner of the brand name. But that by itself will not result in amending the conditions of exemption notification. The exemption notification clearly requires that the benefit thereunder would not be available to the manufacturer of the cement bearing a brand name or trade name, whether registered or not, of another person. It does not make any exception when such use is permitted by the owner of the brand name. Irrespective of the fact whether the manufacturer has full consent of the owner of the brand name to use such brand n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled to the benefit under the notification. In that context, theApex Courthas observed that there was no infirmity in the order of the Tribunal. There was no law laid down as such on the issue which is sought to be canvassed in the matte in hand, nor the issue whether the use of brand name pursuant to consent by the owner thereby would entitle the manufacturer to claim benefit of exemption notification subject to the condition as is found in the notification in question was before the Apex Court or Tribunal nor any such issue has been dealt with in the said decision. Under the notification in question bona fide user of others trade name are not included under the exclusion clause. Besides, it must be noted that we are not benefited of perusing the conditions which were attached to the Notification No. 175/86 and Notification No. 1/93, In what circumstances, the Tribunal had held that so long as assignment stands, the assessee would be entitled to the benefit of notification, is also not known. 18. In Sree Ram Perfumery Works case, the manufacturer was claiming right to use the brand name by virtue of an Assignment. Having noted the said fact, the Tribunal proceeded to observe re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s settled law that the law laid down under a judgment is to be understood with reference to the facts of the case and the points which has arisen in those facts. In the case in hand, the two show cause notices were issued on two different grounds in relation to two different issues. The first show cause notice related to failure on the part of the appellants to submit the declaration which was required to be submitted in terms of Condition I(i) of the notification, whereas the second show cause notice was on account of violation of the Condition I(iii)(b) of the notification. The two issues are totally independent and different from each other. 23. As regards the plea of limitation is concerned, the decisions in the matter of L T Ltd., Pahwa Chemicals Pvt. Ltd., and Gopal Zarda Udyog are not attracted in the facts of the case in hand. Those decisions would be relevant when the allegation of suppression of fact would not be sustainable in case where there was opportunity for the Department to know about the facts which are stated in support of allegation of suppression. In the case in hand by mere reference to the invoices, there was no opportunity for Department to know that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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