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TMI Blog2018 (12) TMI 494X X X X Extracts X X X X X X X X Extracts X X X X ..... at the appellant is using the brand name of other persons - benefit of SSI Exemption is to be allowed - appeal allowed - decided in favor of appellant. - Appeal No. E/1555-1556/2010-DB - A/12244-12245/2018 - Dated:- 11-10-2018 - Mr. Ramesh Nair, Member (Judicial) And Mr. Raju, Member (Technical) Shri Gunjan Shah, Chartered Accountant for the Appellant Shri K.J. Kinariwala, Assistant Commissioner (AR) for the Respondent ORDER Per: Ramesh Nair The issue involved in the present case is that the appellant is manufacturing and clearing the goods under brand names ADROL TECON and SCON by claiming SSI exemption under Notification No. 8/2003-CE dated 01.03.2003. The case of the department is that the brand nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pravinbhai D. Patel, ld. Chartered Accountant submits that the appellant is passed away. He also produced death certificate of Shri Pravinbhai D. Patel dated 27.06.2017 issued by Amdavad Municipal Corporation. 3. Shri K.J. Kinariwala, ld. Assistant Commissioner (AR) appearing on behalf of the Revenue reiterated the findings of the impugned order. He placed reliance on the following judgments:- (a) CCE, Bangalore vs. Vetcare Organics Pvt. Limited 2015 (321) ELT 384 (SC). (b) CCE, Hyderabad vs. Stangen Immuno Diagnostics 2015 (318) ELT 585 (SC). (c) Unison Electronics Pvt. Limited vs. CCE, Noida 2009 (235) ELT 206 (SC). (d) CCE, Trichi vs. Rukmani Pakkwell Traders 2004 (165) ELT 481 (SC) (e) Sudhir Gensets Limited vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment, following was held by Hon ble High Court of Delhi. 14. As noted above, this partnership firm and MEI are being run by the family members. Two brothers are partners in the said partnership firm while the MEI is the sole proprietorship concern of third brother. Both of them have been using the mark Minimax for the last number of years, though, the use by MEI may be prior in point of time. However, even that is the history. Initially, all the three brothers were doing the business together, however, later on these two brothers of partnership firm started separate business in the same line using same name i.e. Minimax . In these circumstances, it cannot be said that the partnership firm started using the name Minimax which belo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... running another firm of M/s. Elex Knitting Machinery, as single person cannot constitute any firm under the law. Therefore, being already co-owner of the brand name, he was competent to use the same. 7. In light of the discussion made above, the benefit of SSI exemption Notification No. 1/93-C.E., dated 28-2-1993 could not be legally denied to the Appellants. Therefore, the impugned order of the Commissioner (Appeals) is set aside. The appeal of the Appellants is allowed with consequential relief, if any, permissible under the law. 8. Reliance was also placed by the appellants on C.B.E. C. Circular No. 52/52/94-CX., dated 1-9-1994, wherein it has been clarified that when the brand name does not belong to any person, then th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecause 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 . 4. From the above mentioned opinion of the Law Ministry, it is clear that if a brand name is not owned by any particular person, the use thereof will not deprive a unit of the benefit of the small scale exemption scheme. This applies not only to locks but to all other goods specified in Notification No. 1/93-C.E. 9. It is observed from the facts of the present case that the brand name AVON is being used by the partnership concerns of the same family. It has not been established by the investigation tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and circumstances of these proceedings, it cannot be considered that the appellants suppressed any information with intention to evade Central Excise duty. 11. Based on the above observations, appeals filed by the appellants are allowed on merit as well as on limitation. 5. In view of the ratio of the above decision involving the same facts, we find that the appellant is using brand name which is also used by other family members cannot be said that the appellant is using the brand name of other persons. Accordingly, they are eligible for SSI exemption. Hence the appeal of M/s. Shreeji Enterprise is allowed. The appeal of Shri Pravinbhai D. Patel is abated. (Order dictated and pronounced in the open court) - - TaxTMI - TMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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