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TMI Blog2010 (9) TMI 1023X X X X Extracts X X X X X X X X Extracts X X X X ..... mount of penalty by denying the said benefit under the said Notification, a part from ordering confiscation of the seized goods valued at ₹ 4,68,350/- giving option for redemption on payment of ₹ 40,000/- as redemption fine and further had imposed penalty of ₹ 20,000/- on M/s. Nucon Industries Pvt. Ltd. 3. In Appeal Nos. 328 329/2008, the same arise against Order dated 31st January, 2008 passed by the Commissioner (Appeals), Hyderabad whereby the Commissioner (Appeals) had dismissed the appeal to the extent it related to the challenge pertaining to denial of the benefit of the said Notification and had allowed the appeal in relation to the claim of benefit of cum-duty price and the same was directed to be worked out afresh along with interest and penalty in terms of Sections 11AB and 11AC of the Central Excise Act, 1944. The Adjudicating Authority, in the said matter, by its order dated 30th August, 2007, had confirmed the demand of duty to the tune of ₹ 11,94,265/- along with interest thereon and equal amount of penalty besides penalty of ₹ 5,000/- on M/s. Nucon Industries Pvt. Ltd. as well as penalty of ₹ 50,000/- on Shri K.K. Preman, Assi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refers to brand name or trade name of some other person and in the absence thereof, the appellants could not have been denied the benefit of the said Notification. Attention was drawn specifically to the Circular of the Board No. 52/52/94-CX dated 1st September, 1994 notice of which was taken by the Apex Court in Nirlex Spares case and ruling was given that a brand name not owned by any particular person, use thereof cannot deprive a manufacturer the benefit of small scale exemption under the said Notification. It was further submitted that the decision of the Apex Court in Commissioner of Central Excise, Trichy. v. Grasim Industries Ltd. reported in 2005 (183) E.L.T. 123 was clearly distinguished by the Apex Court in Nirlex Spares case. 7. It was further submitted on behalf of the appellants in M/s. Nucon Marketing Services Pvt. Ltd. case that there was no justification for the reasons disclosed for invocation of extended period of limitation apart from making mere allegations of un-cooperative attitude on the part of the appellants in the course of investigation while pointing out that the period involved relates to the year prior to 2003-04, it is submitted that the Show Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some person using such name or mark with or without any indication of the identity of that person. 10. Three Hon ble judges Bench of the Apex Court in Grasim Industries case (supra), while reiterating the view taken in Royal Hetcheries Pvt. Ltd. v. State of Andhra Pradesh reported in 1994 Supp. (1) SCC 429 on the aspect of meaning of the expression that is to say and referring to the same phraseology in the definition clause of the terms brand name or trade name in the said Notification, has ruled thus : In this case also the words that is to say qualify the words brand name or trade name by indicating that these terms must therefore be understood in the context of the words which follow. The words which follow are of wide amplitude and include any word, mark, symbol, monogram or label. Even a signature of an invented word or any writing would be sufficient if it is used in relation to the product for purpose of indicating a connection between the product and the other person/company . 11. The Apex Court, therefore, while considering the meaning of the terms brand name or trade name as used in the said condition No. 4 in the said Notification, has clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no requirement in the Purchase Order that M/s. Andhra Automation Private Limited has to affix our brand name on the goods manufactured by them and supplied to us as per the above Purchase Order. We shall further clarify about the Brand Name affixed by us i.e. NI on the goods manufactured by us and traded, and produce samples of our goods at the time of personal hearing. The department has made seizure without making investigation with us regarding our brand name . 13. In a letter dated 1-3-2004, it was stated thus - We submit that we are in full agreement with para-wise comments in the final reply dated 29th February, 2004, of Andhra Automation Pvt Ltd. to the Show Cause Notice under reference. We hereby confirm and declare that the words Nucon found on the goods do not constitute the brand/trade name used on the goods manufactured and traded by us . 14. In the Statement of Shri Suresh Chandra Sharma of the appellant recorded on 24-12-2003, he stated thus : I have gone through the Panchnama and appended my dated signature in token of having gone through the same. The sketch of the cylinder on page 2 of the Panchnama shows that apart from the parameters of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed as under :- The notification clearly indicates that the assessee will be debarred only if it uses on the goods in respect of which exemption is sought, the same/similar brand name with the intention of indicating a connection with the assessees goods and such other 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. As noted hereinabove, we have already indicated that the brand name used on the corrugated boxes would not show any intention of indicating a connection between the goods manufactured by the appellant and the Marketing Company. Again, in Commissioner of Central Excise v. Grasim Industries Ltd. [(2005) 4 SCC 194] this court, while considering similar provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... label. Even a signature of an invented word or any writing would be sufficient if it is used in relation to the product for purpose of indicating a connection between the product and the other person/company. In Tarai Foods Ltd. v. Commissioner of Central Excise [2006 (198) E.L.T. 323], this court, while considering a similar definition of the expression brand name , in paragraphs 7 and 9, held as under :- 7. The words brand name connotes such a mark, symbol, design or name which is unique to the particular manufacturer which when used on a particular product would establish a connection between the product and the manufacturer. 9. Furthermore the definition of the words brand name shows that it has to be a name or a mark or a monogram etc. which is used in relation to a particular product and which establishes a connection between the product and the person. This name or mark etc. cannot, therefore, be the identity of a person itself. It has to be something else which is appended to the product and which establishes the link. In Commissioner of Central Excise v. Superex Industries [2004 (174) E.L.T. 4], in the context of the Notification No. 175/86-C.E., thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue) may also be reproduced as under : Perusal of the said explanation (Explanation IX to the Notification No. 1/93-C.E.) will show that to satisfy the requirement of brand name or trade name, it is necessary that the trade name must 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 or identity of that person. Unless connection between the trade name and the person with whom that trade name is to be identified can be established, the requirement of brand name or trade name as provided for in the said notification will not be satisfied. It is an admitted case of the department that in respect of locks, the units are making locks bearing the same name or mark even though there is no person who claims ownership to that mark or name. The names being used in the manufacture of locks by these small scale units do not belong to any particular manufacturer and any unit is free to use any name. Therefore, in our view, even without the issue of Notification of 4th/11th May, 1994 units which are using trade name or brand name, which does not belong to any person, were eligible for exemptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e comprised under para 41 of the order of the Original Authority and para 13 of the impugned order. The same read as under :- 41. The circumstances in the case are totally different. In the instant case, I clearly find that there has been no delay in issue of the notice as extended period in terms of Section 11A of CEA, was always available to the revenue. Moreover from the conduct of persons like Sri K.K. Preman in as much as his lying under oath is concerned, I find a clear attempt to stonewall the investigation. It is amply clear that the investigation and scrutiny of records was very much ongoing and recording of statements and gathering of material objects is done on 12-5-2006 also. It would be meaningless and unlawful to lay down that since the initial statement of Sri K.K. Preman was recorded on 26-3-2003 the lack of limitation clicks thereon. I find that, the circumstances in its entire issue clearly proves the presence of the necessary ingredients to invoke proviso to Sec. 11A. The floating of companies like M/s. Nucon Marketing Services Pvt. Ltd., M/s. Andhra Automation to claim SSI exemption, the conscious effort at every stage of sale transaction to relate the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fit under the said Notification are similar in nature. But the contention of the Department is that in the present case, the fact that there was violation of the condition 4 by the appellants was revealed to the Department much later and that too in the circumstances wherein the appellant did not render necessary cooperation for conclusion of the investigation. It has been observed that the investigation concluded sometimes in May 2006 and, therefore, the invocation of extended period of limitation was justified. However, the fact remains that the ground on which the benefit of the Notification is sought to be denied to the appellants in the cases in hand is that they had been using the trade name of M/s. Nucon Industries Pvt. Ltd. The fact that they were using this name and the fact that they were using this name for the purpose of identification of the product being meant for the supplier viz. M/s. Nucon Industries Pvt. Ltd. was revealed to the Department as long back as in 2003 itself is not in dispute. It was further confirmed by the letters written by M/s. Nucon Industries Pvt. Ltd. also. Being so, merely because investigation was sought to be concluded in 2006, unless it is t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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