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TMI Blog2017 (10) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 100 Lakhs on which amount Central Excise Duty involved was to the tune of Rs. 40 Lakhs and Education Cess to the tune of Rs. 27,701/-. It appeared to Revenue that appellant have availed the SSI exemption wrongly in contravention of provision of Para-four of Notification No.8/2002 CE read with Notification 8/2003 CE, which states that the exemption contained in the Notification shall not apply to specified goods bearing a brand name or trade name whether registered or not except in the case of exemption provided therein. It is further alleged that the appellant is manufacturing disposable syringes of Hi-Tech brand. Further, the appellant unit is situated in the same locality/area in which the other manufacturer M/s Hi-Tech Medical Products Private Limited is situated. In the course of inspection it was further noticed by Revenue that the appellant is not having any plant and machinery to manufacture disposable syringes, except blistering machine (packing machine) and a facility to sterilize these packed disposable syringes. Up till March, 2001, appellant were procuring the parts of disposable syringes from M/s Aman Medical Products Pvt. Ltd., Daman, on job work basis and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also proposed on the company and its Managing Director. 5. The appellant contested the show cause notice and initially prayed for providing of legible copies of documents relied upon, for preparation of defence reply which was sent to him on 17 January, 2008. Another prayer of hearing was fixed on 05 February, 2008. But in absence of compliance the show cause notice was adjudicated ex parte and the proposed demands confirmed along with equal amount of penalty on the appellant company and its Managing Director, Shri Salauddin. 6. Similarly on the same allegations subsequent show cause notice dated 19 June, 2007 was issued for the period 2006 07, demanding duty of Rs. 8,16,000/- for the period 2006 07 along with proposal to impose penalty. Vide separate Order-in-Original dated 25 March, 2008. The proposed demands were confirmed. Being aggrieved the appellant preferred appeal before learned Commissioner (Appeals). The appeal was dismissed, upholding the Order-in-Original observing that it was an accepted fact that Hi-Tech brand was not the brand of the appellant and further fact is that Hi-Tech brand was being used by the other manufacturers even much before the appellant start ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring using the brand/logo MERINO alongwith the brand name Pelican on the plywood being manufactured by them. The logo MERINO was found to be owned by one M/s Merinoply and Chemicals Ltd, a large-scale manufacturer of plywood not entitled to the benefit of SSI exemption. It was further found that the brand name MERINO and logo was registered and owned by Merinoply and the fixation of the same on the product by Emkay would disentitle them from the benefit of SSI exemption under Notification No.175/86 CE. Such facts being not available in this case, the said ruling is not attracted and have been wrongly relied upon by the courts below. The learned counsel further points out that the said ruling of the Apex Court in Emkay Investment Private Ltd have been distinguished by this Hon'ble Supreme Court in its subsequent judgment in the case of Nirlex Spares Private Ltd v/s CCE - 2008 (222) E.L.T. (3) wherein under the fact that Nirlex Spares was engaged in manufacture of and sale of Riderless Steel Healds and Flat Steel Healds. They were manufacturing and selling under its own brand name/trade name, namely, Intatex and Intaco which were affixed/printed on its corrugated boxes. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd nay 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 exemption under the said notification because of Explanation IX in the said notification. Admittedly, the notification, dated 4th/11th May, 1994 is clarificatory in nature and the purpose could have been achieved by issuing a clarification to the field formations." From a bare reading of this opinion of the Law Ministry and in view of the discussions made hereinabove and relying on the same decisions of this court, as noted hereinabove, it is, clear that if a brand name was not owned by any particular person, the use thereof shall not deprive a unit of the benefit of the small scale exemption scheme. Such being the position, we are of the view that the printing of the hexagonal design on the goods of the appellant, where such hexagonal design is not owned by the Marketing Company, would not disentitle the appellant from the benefit of the exemption under the notification. 8. Accordingly, the learned counsel prays for allowing the appeal with consequential ben ..... X X X X Extracts X X X X X X X X Extracts X X X X
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