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TMI Blog2017 (2) TMI 768X X X X Extracts X X X X X X X X Extracts X X X X ..... evant facts in respect of the clearances of goods affixed with brand name "5 CEES" and "KILLER" without payment of duty, extended period under proviso to Section 11A (1) has been correctly invoked for recovery of the duty short paid on this count. Penalty on Shri Vishal Makhija under Rule 26 of the Central Excise Rules, 2002 has been correctly imposed as admittedly he received non-duty paid goods cleared by the appellant firm - Appeal disposed of. - E/2720, 2719/2011-EX[DB] - A/50141-50142/2017-EX[DB] - Dated:- 6-1-2017 - Mr. (Dr.) Satish Chandra, President And Shri V. Padmanabahan, Member (Technical) Shri J.P. Kaushik, Advocate - for the appellant. Shri G.R. Singh, DR - for the Respondent. Per. V. Padmanabhan:- The appeals are directed against the Order-In-Appeal dated 1.08.2011. The appellant firm is engaged in manufacture of disinfectant fluids, liquid soaps, etc. chargeable to Central Excise duty. The goods manufactured by them were being cleared under the brand name Tiger and LION belonging to them and KILLER and 5 CEES belonging to M/s M.K. Enterprises and M/s 5 CEES respectively. According to the appellant firm, the brand names KILLER a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both the sides. 3. Shri J.P. Kaushik, Advocate, the learned Counsel for the appellants, pleaded that while the appellant firm does not contest the duty demand of ₹ 43,503/- in respect of clearances to M/s M.K. Enterprises, the duty demands of ₹ 3,77,979/- and ₹ 3,76,736/- are not sustainable. The duty demand of ₹ 3,77,979/- for 2007-2008 period is raised on account of payment of duty on black disinfectant on transaction value under Section 4 of the Act while the Revenue was of the view that duty was required to be paid on value determined under Section 4A of the Act. The duty demand raised vide show cause notice dated 16/7/09 is totally time barred, as longer limitation period of five years under proviso to Section 11A (1) is not invokable for the reason that there was no fraud, wilful misstatement, suppression of facts etc. on the part of the appellant. He submitted that the appellant firm, even during 2006-2007 had paid duty on black disinfectant on value determined under Section 4, which was more than the duty payable on value determined under Section 4A which shows that payment of duty on black disinfectant on value determined under Section 4 was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly considered the submissions from both the sides and perused the records. 6. The duty demand of ₹ 43,503/- in respect of clearances without payment of duty to M/s M. K. Enterprises is not contested. 7. Duty demand there is no dispute account of the fact of ₹ 3,77,979/- is for 2007-2008 and that this short payment took place on account of the fact that the duty was to be paid on value determined under Section 4A i.e. MRP minus abatement, the same was paid on transaction value under Section 4. However, this appears to be due to ignorance on the part of the appellant firm, as disinfectant was an item notified under Section 4A during 2006-2007 also and during that period also, the appellant firm paid duty on transaction value under Section 4 while during that period, and as is clear from Annexure D-1 to show cause notice, duty payable on transaction value under Section 4 was more than the duty payable on assessable value determined under Section 4A and as such the appellant had paid excess duty to the tune of ₹ 2,19,478/-. Therefore, we are of the view that short payment of duty of ₹ 3,77,979/- during 2007-2008 is not on account of any intention to evade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brand name or trade name whether registered or not of another person except in the cases specified in the said notification and that the appellants' case does not fall in any of the said exceptions. It is, however, the contention on behalf of the appellants that they were lawfully entitled to use the brand name 'GURU' pursuant to the consent, assignment and registration of the said trade name in favour of the appellants. 11. The notification explains the term brand name or trade name to mean a brand name or a trade name, whether registered or not, i.e. to say, the 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. It is also clarified that where the specified goods manufactured by the manufacturer bear a brand name or trade name whether registered or not of any other manufacturer or trader, such specified goods shall not, merely by reason of that fact be deemed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e any further appeal, the Revenue is precluded from taking a different stand in the present appeals as per law laid down by this Court in a catena of cases. (See Collector of Central Excise, Pune v. Tata Engineering Locomotives Co. Ltd. reported in (2003) 11 SCC 193; Berger Paints India Ltd. v. Commissioner of Income Tax, Calcutta reported in (2004) 12 SCC 42, Birla Corporation Ltd. v. Commissioner of Central Excise reported in (2005) 6 SCC 95 = 2005 (186) E.L.T. 266 (S. and Jayaswals Neco Limited v. Commissioner of Central Excise, Nagpur reported in 2006 (195) E.L.T. 142 (S.C.) . Proper reading of the decision in Bigen Industries case would disclose that the Apex Court therein has held that the Tribunal was right in observing that once the trade mark has been registered in the name of assessee by the statutory authority authorised to do so, recognizing the assessee to be the sole proprietor of the trade mark for India, the adjudicating authority as well as the Commissioner (Appeals) erred in denying the benefit of the notification under consideration. The order of the Hon'ble Supreme Court does not relate to any assignment or consent of the proprietor. It was esse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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