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TMI Blog2018 (2) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... granted the benefit on the point of limitation by observing that though the fact of use of others brand name was not disclosed in the classification list but inasmuch as the issue was of interpretation and contentious, no malafide would be attributed to the assessee. Accordingly, relief was granted by the Tribunal on the point of time bar. We find favour with the appellant's plea of, re-quantification of the demand by extending the benefit of cum-duty and direct the lower authorities to re-quantify the demand accordingly. If the demand is quantified on the lower aside, penalty would also get reduced to that amount - appeal allowed by way of remand. - E/00464/2010 - 42792/2017 - Dated:- 3-11-2017 - Smt. Archana Wadhwa, Member (Judicia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;ble Supreme Court in the case of Commissioner Vs M/s. Bhalla Enterprises reported in 2004 (173) EL.T. 225 (S.C.), there were decisions in favour of the assessee where the goods were manufactured with unregistered brand name or where the brand name owner was not manufacturing the same goods. Under these circumstances, the appellants were under a bonafide belief that they can claim the benefit of small-scale exemption notification, in case the goods are manufactured with unregistered brand name. On a specific query from the Bench, whether the appellants have disclosed to the Revenue that they are manufacturing the goods with the brand name of others, the answer is negative. 3. The Revenue submitted that as the appellants never di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Padmini Products laying down that extended period would be available to Revenue only when there is positive evidence of suppression and mere non-filling of the declaration etc., will not attribute any malafide to the assessee. 5. We note that the Hon'ble High Court of Bombay in the case of Commissioner of Central Excise, Raigad Vs M/s. Rampty (India) Ltd reported in 2010 (249) E.L.T. 31 (Bom.) has dealt with an identical situation where the brand name belonging to another person was being used with simultaneous availment of SSI exemption. Tribunal granted the benefit on the point of limitation by observing that though the fact of use of others brand name was not disclosed in the classification list but inasmuch as the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to benefit when the same brand name or make was used by two persons was clarified by the Circular of the Board in 1988, before the Respondent herein began its manufacturing operations. In the instant case the Respondents admittedly was using the mark of another company, may be a group company. That group company was not eligible for exemption. To contend that this is a contentious issue, in our opinion, is begging the issue. Similarly, in so far as Clause 4 of the Notification dated 28 th February, 1993, it is clear that the exemption contained in the Notification shall not apply to the specific goods, if the brand name or trade name used is registered or owned by another person. In other words, if the assessee uses the brand name of ano ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the interpretation of same was contentions. If the appellant was using somebody else's brand name, he may be knowing that he is not entitled to the benefit of the exemption notification. We also note that for arriving at the above finding, the Hon'ble Bombay High Court drew support from the Supreme Court decision in the case of M/s. Vora Products. 6. Inasmuch as, the facts and circumstances in the present case, are more or less identical to the facts of the matter before Hon'ble High Court, by following the same, we find no merits in the appellant's plea of limitation and the appeal is accordingly rejected. However, we find favour with the appellant's plea of, re-quantification of the demand by extending the benefit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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