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TMI Blog2010 (7) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant. Shri Ravi Chopra, DR, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President]. - This appeal arises from order dated 28-12-2005 passed by the Commissioner (Appeals), Chandigarh. By the impugned order, the Commissioner (Appeals) has allowed the appeal which was filed by the respondents herein against the order dated 4-6-2003 of the Joint Commissioner, Jalandhar. By the said order, the Joint Commissioner while rejecting the benefit of Notification No. 1/93-C.E., dated 28-2-93 to the respondents had confirmed the demand of duty to the tune of Rs. 3,00,246/- with penalty of Rs. 50,000/-. Consequent to setting aside of the said order in appeal, the respondents have been declared to be entitled to the said benefit under the said notification. 2. The respondents herein were the manufacturers of Tyres, Tubes, Tyre flaps and Rice Rubber Rolls classifiable under Chapter 40 of the Central Excise Tariff Act, 1985. The respondents were availing the benefit of SSI exemption under Notification No. 1/93-C.E., dated 28-2-1993. The respondents had filed the declaration in terms of Rule 73 (B) of the Central Excise Rules, 1944, w.e.f. 1st May, 1995, wherein th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice charged by the respondent was cum duty price and for working out the assessable value, the element of duty was required to be excluded and secondly that, as there was no case of evasion of duty to establish against the respondents, no penalty was warranted. 6. Ld. DR while drawing our attention to the provisions of Rule 173B of the said Rules along with the said notification and placing reliance in the decision of the Apex Court in the matter of Commissioner of Central Excise, Trichy v. Rukmani Pakkwell Traders reported in 2004 (165) E.L.T. 481 (S.C.), Commissioner of Central Excise Customs, Indore v. Parenteral Drugs (I) Ltd. reported in 2009 (236) E.L.T. 625 (S.C.), Unison Electronics Pvt. Ltd. v. C.C.E., Noida reported in 2009 (235) E.L.T. 206 (S.C.), Commissioner of Central Excise, Chandigarh-I v. Mahaan Dairies reported in 2004 (166) E.L.T. 23 (S.C.), Meghraj Biscuits Industries Ltd. v. Commissioner of Central Excise, U.P. reported in 2007 (210) E.L.T. 161 (S.C.), Mysore Metal Industries v. CC, Bombay reported in 1988 (36) E.L.T. 369 (S.C.) and BOC India Ltd. v. State of Jharkhand reported in 2009 (237) E.L.T. 7 (S.C.) submitted that the provisions of the notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Explanation IX. - Brand name or trade name shall mean a brand name or trade name, whether registered or not, that is to say a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person. 9. The Apex Court in Rukmani Pakkwell Traders case while referring to the Condition No. 4 and Explanation No. IX, held thus :- Clause 4 of this Notification and the explanation (set out hereinabove) make it clear that the exemption will not apply if the specified goods (i.e. scented supari) bears a brand or trade name of another person. Neither in Clause 4 of the Notification nor in Explanation IX is it provided that the specified goods must be the same or similar to the goods for which the brand name or trade name is registered. The Tribunal has in adopting the above reasoning effectively added to the Notification words to the effect brand name or trade name in respect of the same goods . Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, which were being used by different manufacturers. As rightly pointed out by the ld. DR, it is settled law that the assessee claiming an exemption under an exemption notification has to establish that he has complied with all the conditions, which are required to be complied with to avail the benefit under the notification. The decisions of the Apex Court in Mahaan Dairies, BOC India Ltd., as well as Mysore Metal Industries are very clear on this aspect. In spite of the fact that it was for the respondents to establish that they were justified in claiming the exemption under the said notification and that they were not using the brand name of another person, no material was placed on record in support of the contention that the brand name used by them for their product was a common brand name used by different manufacturers. Ld. Advocate for the respondents fairly conceded that materials on record do not disclose any evidence having been placed on record in that regard by the respondents. His contention, however, was that it was for the Department to prove that the brand name belongs to another person. As far as the onus in that regard is concerned, the Department had already di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit of exemption under Notification No. 1/93-C.E. merely on the ground that they are using marks, labels, etc. used by other manufacturers, so long as such marks, etc. do not belong to a particular person. Obviously, the Circular merely advises that in case of brand name used by different manufacturers, which constitute common brand name, would not disentitle the manufacturer from claiming benefit under the said notification on use of such brand name. As already seen above, the respondents have failed to establish that the brand names used by them were common brand names. 16. The claim pertaining to the cum-duty price and the penalty is concerned, undisputedly was not considered by the Commissioner (Appeals). We have no benefit of the finding of the lower authority on this aspect of the matter before considering the matter at the appellate stage. Being so, it would be appropriate to remand the matter in that regard to the adjudicating authority to deal with those issues in accordance with the provisions of law on the basis of the materials available on record. 17. In the result, therefore, the appeal succeeds and the impugned order is hereby set aside while holding tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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