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TMI Blog2017 (5) TMI 690X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent. ORDER [Order per: Madhu Mohan Damodhar] Both the appeals since emanating the same impugned order, they are taken up for common disposal. 2. Facts of the case are that main appellant, M/s. Matrix Biosciences Ltd., (herein after referred to as MBL) are manufactures of Aqua feed supplements, Aqua Feed additives, Pond water manufacturing the said products with brand names (a) After (b) Dazzler, (c) Propel, (d) Stay-Phor, (e) Dart, (f) Rapid-Oxy, (g) Sulphaprim, (h) Bindex Gel and (i) Commander/Commander Special M/s. Matrix Vet Formulations, (herein after referred to as MVF) are also the manufacturers of similar products. MBL and MVF are sister concerns and both have their Registered office located at Plot No. 63, Flat No101, Ashok Kuteer Apartment, Durga Nagar Colony, Punjagutta, Hyderabad-50082. 3. Pursuant to investigation, it emerged that MBL manufactured and cleared dutiable goods with the trade mark/logo of MVF, accordingly the said trade mark/logo will fall under the definition of trade name in the relevant SSI Notifications. If further, appeared to the Department that: i) MBL have manufactured and cleared that goods bearing the trademark ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmed demand of duty and Education Cess proposed in the Show Cause notice along with interest thereon. iii) Imposed penalty of ₹ 78,76,135/- on MBL under Section 11AC. iv) Imposed penalty of ₹ 50,00,000/- on MBL under Rule 173Q/Rule 25. v) Imposed penalty of ₹ 50,00,000/- on Sh. V. Shiva Prasad Managing Director of MBL. vi) Ordered confiscation of goods seized from different places, valued at ₹ 21,18,722/-, ₹ 9,16,498/, ₹ 2,30,908/- respectively on imposition of fine of ₹ 3,00,000/-, ₹ 1,50,000/- and ₹ 30,000/- respectively. 5. Aggrieved, the appellants have filed these appeals. 6. On 21.02.2017, when the matter came up for hearing, on behalf of appellants, Sh. V. J. Sankaram, Ld. Advocate, reiterated the grounds of appeal and also gave written submissions. The main contentions of the appellant are:- i) Issue is barred by limitation since show cause notice was issued three years after visit of Officer s and exchange of correspondence. ii) Chemical Examiner s opinion in respect of two products Binder and Commander is that the former is feed and the latter is a mineral substance for wat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents dated 09.092003 and 25.01.2005 have admitted that MVVPPL/M/s. MBL have been using the above said trade Mark/logo of MVF on the products of M/s MBL without paying any consideration. They have applied for registration of the same trade mark/logo and brand name of their products with the trade marks, with the registration authorities, Chennai. MVPPL/ M/s MBL have applied for registration of their products (Annexure C8 to the SCN0viz., Alert, Allways (without logo), Bindex gel, Stayphor, seize and max grow with the same trade mark/logo. The authorities have allotted provisional numbers for the above products. From 1 st January, 2004 onwards M/s MBL stopped using the said trade mark, apparently on initiation of the investigation by the Department. Thus it is evident that M/s. MBL manufactured and cleared all the dutiable goods with the Trade mark/logo of MVF. Hence, the exemption contained in the Notification No s.8/2001 CE dated 01.03.2001 as amended, 08/2002-CE dated 01.03.2002 as amended and 8/2003 CE date 01.03.2003 as amended shall not apply to the specified goods bearing a brand name or trade name whether registered or not of another person. In this respect Brand name mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption. In their support, the notice company has relied on the decision of the Honorable CESTAT in the case of CCE, Chennai, Vs. M/s Sivanesan Co. 2005 (190) ELT 236 (Tri. Chennai). The Honorable Tribunal in the above said case has observed that there are actually two partnership firms in the name of M/s Sivanesan Co., and M/s S. Sivanesan Co. both the firms used the brand name of Premier along with the logo SS in respect of the products cleared by them emphasized that when the brand name is jointly owned, each person is owner of the brand name. In this view, in the present case, we cannot say that the respondent were using the brand name of another person. Moreover, the Commissioner (Appeals) has given a finding that even if clearances of both the units are clubbed together, they will come within the exemption limit provided in the Notification. 35. The above said decision of the Tribunal is not applicable in the present case. M/s Matrix Vet Formulations, has started using the brand name, Trae Mark from 1996 onwards on their goods. Thus, M/s Matrix Vet formulations is the owner of the brand name, trade mark. As per the Memorandum of understanding dated 05.12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The voluminous nature of investigations involved is evident from the fact that the Show Cause Notice and its annexures run into more than 20 pages. In any case, the Show Cause Notice has been issued proposing the demand of Central Excise duty in terms of Section 11A (1) of the Central Excise Act, 1944 read with the proviso thereto, which provides for higher limitation period of five year. For these reasons, we do not find any merit in the appellant contention on limitation. 13. In the event, we are not able to find any infirmity in the aforesaid conclusions of the adjudication authority. In consequence, the finding in the impugned order that value of clearances of all goods manufactured by MBL exceeded of ₹ 3 crores during 2002-2003 and 2003-2004 will sustain and accordingly MBL will not be eligible for SSI exemption for 2003-04 and 2004-05 under relevant SSI notification is correct in law and will sustain. THE demand of Central Excise duty of ₹ 78,76,135/- and education cess ₹ 6,346/- with interest liability thereon on MBL is therefore, not interfered with. 14. Appellants have contended that cum-duty benefit should have been given to them. We find that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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