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TMI Blog2018 (8) TMI 793X X X X Extracts X X X X X X X X Extracts X X X X ..... 985. The appellant have been availing the benefit of small scale industries exemption Notification No. 08/2003-CE dated 01/03/2003 (as amended). During the course of audit by the Department, it was noticed that the appellant have been using the brand name „Surya' „Gold' and „Luxmi' on their manufactured products. On further examination by the Department and verification from the website of Controller General of Patent Design and Trade Marks it was gathered that brand name "Surya Gold" was registered in the name of Namit Wadhwa and brand name "Luxmi" was registered in the name of Geeta Gupta. As per the scheme of things under SSI exemption Notification 08/2003-CE dated 01/03/2003, the SSI exemption is not available to the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents of Tribunal as well as Hon'ble Supreme Court which are as follows :- i) Pahwa Chemicals Pvt. Ltd. vs. CCE - 2005 (189) E.L.T. 257 (S.C.) ; ii) Cosmic Dye Chemical vs. CCE - 1995 (75) E.L.T. 721 (S.C.) ; iii) Tamilnadu Housing Board vs. CCE - 1994 (74) E.L.T. 9 (S.C.) ; iv) Chemphar Drugs & Liniments vs. CCE - 1989 (40) E.L.T. 276 (S.C.) and v) Fluid Synthetic Incorporation vs. CCE - 2007 (210) E.L.T. 126 (T). 3. We have also heard learned AR who has reiterated the findings of order under challenge. 4. We have heard both sides and perused the record of the appeal. 5. It is a matter of fact as admitted by the appellant/assessee that the brand name Surya Gold and Luxmi does not belong to them and both the brand names are regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Second Schedule to the said Central Excise Tariff Act, 1985 (hereinafter referred to as the Second Schedule), as is in excess of the amount calculated at the rate specified in the corresponding entry in column (3) of the said Table : Provided that nothing contained in this notification shall apply to a manufacturer who has availed the exemption under notification No. 39/2001-Central Excise, dated the 31st July, 2001, published in the Gazette of India vide number G.S.R. 565 (E), dated the 31st July, 2001, in the same financial year. Table S. No Value of clearances Rate of duty (1) (2) (3) 1. First clearances up to an aggregate value not exceeding one hundred lakh rupees made on or after the 1st day of April in any financial year. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NVAT Credit Rules, 2002 (herein after referred to as the said rules), paid on inputs used in the manufacture of the specified goods cleared for home consumption, the aggregate value of first clearances of which, as calculated in the manner specified in the said Table does not exceed rupees one hundred lakhs; (iv) the manufacturer also does not utilise the credit of duty on capital goods under rule 3 or rule 11 of the said rules, paid on capital goods, for payment of duty, if any, on the aforesaid clearances, the aggregate value of first clearances of which does not exceed rupees one hundred lakhs, as calculated in the manner specified in the said Table; (v) where a manufacturer clears the specified goods from one or more factories, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of another person, except in the following cases :- " 6. It can be seen from above that condition No. 4 categorically mentions that exemption benefit under the above-mentioned notification shall not apply to the goods bearing a brand name or trade name whether registered or not of another person. We are of the view that the person availing the benefit of the notification (which provides exemption from payment of duty) has to ensure or take necessary precautions before availing the benefit of such exemption notification. It is expected from the person availing the benefit of any notification that he himself has to be sure and meet all the conditions of such notification before making any claim of benefit. We find that it was the duty of ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led to the benefit of the exemption. (ii) SSI exemption - object and intent of exemption notification to small scale industries is to grant benefits only to those industries who is not having advantage of brand or trade name (para 11). 11. It is manifest from a bare reading of clause Notification, read with Explanation IX that it clearly debars an assessee from the benefit of exemption under the notification, if he uses another person's brand or trade name with the intention of indicating a connection between the assessee's goods and such other person. It is evident that the object of the exemption notification is to grant benefits only to those industries which otherwise do not have the advantage of brand or trade name. (See : Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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