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TMI Blog2013 (9) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... seized goods are not sustainable. Extended Time-Limit - In terms of rule 173B of the Central Excise Rules, 1944 no responsibility was cast on the appellants to declare the trade name or brand name affixed by them on their goods - the extended period of limitation was not invocable in the case - The order confirming the demand for the period beyond six months under the proviso to Section 11A of Central Excise and Salt Act, 1944 was not sustainable and the differential duty if any was to be recovered only in respect of clearances during the normal period of limitation i.e. 6 months from the date of show cause notice. Stay Application - Financial Hardship - Prima facie strong case both factually and legally in favour of the appellants - Their financial condition was very bad primarily due to the recession in the market and produced copy of the balance sheet and profit and loss account for the year ended 31-3-2011 - Assessee had very strong legal case stay may be granted waiving any pre-deposit - stay granted. - E/1433-1435/2010 - Stay Order Nos. S/1182-1184/2011-WZB/AHD - Dated:- 30-8-2011 - Ms. Archana Wadhwa and Dr. P. Babu, JJ. Shri P.V. Sheth, Advocate, for the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 003 is reproduced as below : 3. For the purposes of determining the aggregate value of clearances for home consumption, the following clearances shall not be taken into account, namely :- (a) . (b) clearances bearing the brand name or trade name of another person, which are ineligible for the grant of this exemption in terms of paragraph 4; (c) . (d) omitted w.e.f. 1-4-2008 (e) . 4. The exemption contained in this notification shall not apply to specified goods bearing a brand name or trade name, whether registered or not, of another person, except in the following cases :- (a) where the specified goods, being in the nature of components or parts of any machinery or equipment or appliances, are cleared for use as original equipment in the manufacture of the said machinery or equipment or appliances by following the procedure laid down in the Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001 : Provided ; (b) where the specified goods bear a brand name or trade name of - (i) the Khadi and Village Industries Commission; or (ii) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the original adjudicating authority accepted the argument of the appellants that they were entitled to the benefit of cum duty price for determining the assessable value for charging duty. Accordingly the value for purpose of charging duty through the period from 2005-06 and 2008-09 has been reworked out. He also discarded the proposal for imposing personal penalty under Rule 26 as he found that there was nothing on record to indicate that they positively knew or had reason to believe that the excisable goods in respect of which the alleged contraventions have been committed by noticee no. 1., were liable to confiscation. 10. We find that on a similar issue in the case of Bhavna Industrial Corporation v. CCE, Rajkot reported in 2009 (248) E.L.T. 660 (Tri.-Ahmd.) this Bench has observed as follows : 2. Further, demand of duty of Rs. 9,827. - stands confirmed against the appellants on the findings that they have used the brand name Anil which belongs to M/s. K. Rasiklal Company. The appellants have contested that Anil was their family Brand Name and upon distribution of work, as per the agreement, all the three parties were allowed to use the same. This fact does not stan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther person or uses the name in such a manner that it would indicate such connection. Therefore, if the assessee is able to satisfy the assessing authorities that there was no such intention or that the user of the brand name was entirely fortuitous and could not on a fair appraisal of the marks indicate any such connection, it would be entitled to the benefit of exemption. An assessee would also be entitled to the benefit of the exemption if the brand name belongs to the assessee himself although someone else may be equally entitled to such name. 12. We have also considered the following judgments : 1. Lakshmi Plastics Ltd. v. CCE, Guntur [2005 (182) E.L.T. 356 (Tri.-Bang.)] 2. Pethe Brake Motors Ltd. v. CCE, Pune [2005 (179) E.L.T. 57 (Tri.-Mumbai.)] 3. Paresh Plastics P. Ltd. v. CCE, Rajkot [2008 (226) E.L.T. 415 (Tri.-Ahmd.)] 13. While arguing the case, Shri P.V. Sheth, learned advocate for the appellants brought to our notice an order passed by the Hon ble Additional Senior Civil Judge, Rajkot on 7-12-2008 though mentioned earlier in their reply. It reads as follows : The parties and their advocates are present. They produce the compromise pursues whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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