9911796707
TMI Blog2011 (6) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... be decided - In fact, claim of exemption notification is a question of law and can be raised at any point of law - mere fact that an appeal was filed against the adjudication order, is reflective of their protest against the said impugned order - Decided in the favour of assessee by way of remand X X X X Extracts X X X X X X X X Extracts X X X X ..... and name of another person, does not amount to use of brand name in respect of the product manufactured by them. As such, the benefit of notification in question cannot be denied to them. The said plea of the appellant was not entertained by the appellate authority on the ground that they themselves have deposited the duty during the course of investigation and the said plea was never raised before original adjudicating authority. He, accordingly, refused to examine the applicability of Notification No.8/2003-CE, dt.1.3.03, in the light of the decision relied upon by the applicant. However, he set aside the penalty on the Proprietor of the firm. Hence, the present appeal. 6. Ld.Advocate appearing for the appellant submits that the authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee has not accepted the order of original adjudicating authority and the fact of filing of an appeal equates the same to duty having been deposited under protest. As such, the finding of Commissioner(Appeals) that the appellants having deposited the duty, seems to have accepted the demand and as such, they cannot be allowed to claim notification benefit, is not correct, inasmuch as the duty deposits are deemed to have been made under protest. For the above proposition, he relies upon the Tribunal s decision in the case of Hutchisom Max Telecom Pvt.Ltd. Vs. CCE Mumbai 2004 (165) ELT 175 (Tri-Del) as also on the Tribunal s decision in the case of Opel Alloys Pvt.Ltd. Vs. CCE Ghaziabad 2010 (249) ELT 408 (Tri-Del). 8. Countering the argument ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he outset, on the ground that the same was not raised before original adjudicating authority and the appellant is debarred from raising the same. In fact, claim of exemption notification is a question of law and can be raised at any point of law. The same is not relatable to the facts involved in the given case and its applicability, is required to be examined on the basis of facts already available on record. As such, in our view, the appellate authority was not justified in refusing to examine the applicability of Notification No.8/2003-CE. Further, the mere fact that the appellant deposited duty along with interest and 25% of penalty during the course of investigation, itself cannot be made the ground to conclude as if the appellants hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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