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TMI Blog2017 (4) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... od are not the brand name of any other person. On merits, it is held in favor of the appellant as the brand name being their own they cannot be precluded from availing the small scale exemption. The words used on the label Marketed by Elpro International is also not any hurdle in the case of the appellant inasmuch as the said words did not indicate any connection of Elpro to the brand name Calrod due to which appellant could have got undue benefit in the market. Extended period of limitation - Held that: - Nothing is brought on record to show that there was suppression from the side of the appellant as to use of word Calrod as the brand name - demand also hit by limitation. Appeal allowed - decided in favor of appellant. - E/2989/05 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vestigation came to the conclusion that the appellant is ineligible to avail the benefit of small scale exemption as the product are affixed with the label Marketed by Elpro International and the product label also had a brand name Calrod. Coming to a conclusion that there was evasion of central excise duty show-cause notice was issued which was contested on merits as well as on limitation. The adjudicating authority confirmed the demand raised against which the appeal was preferred to the Tribunal. Tribunal by final order no. CII/2576/WZB/2002 dated 23.08.2002 remanded the matter back to the lower authorities to reconsider the issue once again. The adjudicating authority in this appeal has passed the impugned order in remand proceedings an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant with Elpro restricted the sale of the said product to anyone during the contract period. The contract ended in January 1994 which would mean that the appellant is entitled to sell the product brand Calrod to anyone which is an indicator that the brand name was belonging to appellant. He would rely upon the affidavit filed by the appellant which clearly indicated that Calrod was not their brand name at all. He would rely upon the following decisions 1) Nirlex Spares P. Ltd. 2008 (222) ELT 3 (SC) and 2) CCE vs. MTR Foods Ltd. 2012 (282) ELT 196 for the submission on merits and also on the decision of the apex court for the proposition that marketing company and the manufacturer are different and hexagonal design of the marke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission that the appellant suppressed vital information of an agreement entered by them with Elpro for the sale of Calrod and restricting the sale of such heating element to any other customer other than Elpro. In the absence of this information, revenue was not aware that Calrod was the brand name of Elpro. 7. We have considered the submission made at length by both sides and perused the records. 8. The main issue involved in this case is whether the appellant is eligible to avail the benefit of small scale exemption notification in respect of the heating elements cleared by them during the February 1991 to December 1999. It is the case of the revenue that the appellant had cleared heating elements with brand name Calrod and the wordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be difficult to conclude that the appellant was not the owner of the brand name. It can be seen from the above reproduced portion of para 5 from our order, we have reached to conclusion that logo Calrod was not of the appellant. On a specific query from the bench it was informed that revenue has not preferred any appeal against the said order of the Tribunal. During the course of such hearing on 23.08.2002, the bench queried as to any affidavit has been filed by Elpro. In response to such query, the appellant produced an affidavit dated 27.11.2002 before the adjudicating authority wherein the Company Secretary of Elpro categorically stated that Calrod was never their brand name/ trade name or logo and they have never used it as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the factory premises of the appellant. It is also seen that the appellant had given items which they are going to manufacture in their factory premises. All these would indicate that the appellant had always considered Calrod as their brand name and not the brand name of Elpro. The affidavit of the Company Secretary of Elpro also fortified the stand taken by the appellant. 12. In view of the foregoing, appellant has made out a case that the product manufactured and cleared by them with the words Calrod are not the brand name of any other person. On merits, we hold in favour of the appellant as the brand name being their own they cannot be precluded from availing the small scale exemption. The words used on the label Marketed by Elpr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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