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TMI Blog2017 (2) TMI 1072X X X X Extracts X X X X X X X X Extracts X X X X ..... nical Member Mr. Raghavendra B. Hanjer, Advocate For the appellant Mr. N. Jagadish, AR For the respondent ORDER Per V. Padmanabhan The appeal is directed against the impugned order dated 30.7.2004 passed by the Commissioner (A), Mangalore. The appellant is a manufacturer of veneers and block boards and were clearing the goods by availing the SSI exemption. As they were found to be clearing the goods with the brand name Kanachur , which did not belong to them, the department was of the view that they are not entitled to the SSI benefit. Accordingly, show-cause notice was issued and the Order-in-Original passed by Commissioner in which duty demand was confirmed with imposition of interest and penalty. This order was challenged before CESTAT, who vide Final Order No.422/2003 dated 24.3.2003 remanded the case back to the adjudicating authority who was directed to consider the certificate issued by the Deputy Commissioner (Revenue Authority), Mangalore which was submitted by the appellant in support of their argument that their unit was situated in a rural area and hence were allowed to claim SSI benefit even when the goods are cleared with the brand name of anothe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat for the period under dispute the appellant s unit was located within the rural areas as outlined in para 4 of the Notification No.8/2001. 5. The appellant is a manufacturer of veneer and block boards and they have cleared the goods by affixing brand name Kanachur . The department has alleged that the appellant has used the brand name Kanachur of another manufacture viz., M/s. Kanachur Boards and hence is not eligible for SSI exemption. Since the appellant has made use of the brand name which belongs to another person, the benefit of SSI exemption has been denied by both the authorities below. The appellant has claimed that they will be entitled to the benefit of Notification under para 4 of the Notification No.8/2001 dated 1.3.2001. The relevant part of para 4 of the Notification is reproduced below. 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 manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have gone through the English translations of the above documents referred to by the adjudicating authority. We note that the question whether the appellant s unit was situated in a rural area during the period of dispute is a question of fact which needs to be established on the basis of the relevant Notifications and certificates issued by the Jurisdictional Revenue authorities. The appellant has produced some relevant certificates. The issue was remanded to the original authority in the last round of litigation for verifying such certificates and to decide the question of fact as above. However, it appears to us that the original authority as well as the Commissioner (A) have summarily decided that the appellant s unit does not fall under the rural area during the relevant time. With reference to the official Memorandum dated 14.7.1994 issued by the Government of Karnataka only indicates that the area of Mangalore Municipal Corporation extends upto the southern boundary comprising several villages including Permannur. From this Official Memorandum, it cannot be conclusively stated that Permannur village was part of Mangalore Municipality. However the lower authorities have concl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and name of TRANSPADE is used in respect of the goods manufactured by both the proprietorship as well as private limited companies in respect of the same products i.e. cranes. On this basis, Revenue has alleged that the brand name used by the appellant does not belong to them and hence has proceeded to deny the SSI exemption. 5.3. The appellant has relied upon several case laws in which the eligibility for SSI benefit in respect of goods cleared with brand name has been decided in favour of the assesses. In the case of CCE Vs. Minimax Industries (supra), the Hon ble Delhi High Court had occasion to examine a similar case of denial of SSI benefit in respect of goods cleared with the brand name MINIMAX . In the said case, this brand name was being applied to goods manufactured by M/s. Minimax Industries. The allegation was that this brand name belonged to another unit, which was the sole proprietorship concern of Mr. Mohd. Yamin. The Hon ble High Court discussed the issue as follows:- 14. As noted above, this partnership firm and MEI are being run by the family members. Two brothers are partners in the said partnership firm while the MEI is the sole proprietorship concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority relied on the decision of the Tribunal in Anil Pumps (P) Ltd. vs. C.C.E., Panchkula 2005 (180) ELT 500 and Bothara Agro Equipments P. Ltd. vs. C.C.E., Aurangabad 2007 (214) ELT 121 (Tri-Mum.). It was also noted that the original authority did not follow these rulings only on the ground that the appeal against the said orders are pending. We find that ratio of the Tribunal s decisions as above has been correctly adopted in the impugned order. As such, we find no merit in the appeal filed by Revenue. The same is dismissed. 7. In view of the above discussions, by following the decisions of the Tribunal on identical facts, we find no merits in the impugned order which is set aside and the appeal is allowed with consequential benefit to the appellant. 6.1 After going through the above case laws, we are of the view that the issue in the present case is to be decided in favour of the appellant by following the decisions of the Tribunal cited above which are on similar facts. 6.2 In view of the above discussions, we find no merits in the impugned order which is set aside and appeal is allowed. ( Order is pronounced in Open Court on 13/02/2017 ) - - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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