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TMI Blog2019 (4) TMI 1258X X X X Extracts X X X X X X X X Extracts X X X X ..... S [ 2002 (10) TMI 114 - CEGAT, COURT NO. II, NEW DELHI] , which had held that in a case like the instant case, the user of the brand name obtained upon permission, including assignment from the brand owner, was eligible to benefit under the pari materia Notification No. 175/86-CE, unless the specified goods on which the small scale manufacturer used brand name belonging to another person was identical to the goods of such other person and, therefore, the extended period of limitation contained in the Proviso to Section 11A(1) of the Act is not applicable. Clandestine removal - period April, 1998 to September 26, 1998 - HELD THAT:- In the absence of any official translation being brought on record, this dispute cannot be resolved. The employee, Shri Tapan Kumar Bose, is also no longer available as the firm has closed down its business as informed by the appellant s counsel. Moreover, the matter relates to more than 20 years back. In such circumstances it is not possible to arrive at any conclusive finding on this issue. Appeal disposed off. - Appeal No.E/294-295 OF 2006 - ORDER NO. F.O. NO. 75207-75208/2019 - Dated:- 11-1-2019 - SHRI P.K.CHOUDHARY, MEMBER(JUDICIAL) AND ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y VMT and hence the exclusion clause in the notification was applicable. It was further alleged that the firm had manufactured and cleared 4054 pieces of the said goods valued at ₹ 32,86,213/- involving central excise duty of ₹ 8,21,553.25 from its factory without payment of duty during the period April 1998 to November 6, 1998. The show cause notice therefore proposed recovery of a total duty demand of ₹ 52,34,182.75 from the appellant firm in terms of the provision of Rule 9(2) of the Central Excise Rules, 1944 read with Section 11A of the Act, along with interest under Section 11AB of the Act. It also proposed imposition of penalties upon both the appellants. The show cause notice has resulted in the impugned order. 4. On behalf of the appellants it has been contended that although during the relevant period there were decisions of the Tribunal including the larger Bench of the Tribunal that for being ineligible to the benefit of exemption under the subject small scale exemption notification, all of which had similar exclusion clause as Notification No. 1/93, it was necessary that the specified goods on which the small scale manufacturer used the br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant firm was manufacturing and clearing roofings, panels and ridges with the Glasspoll brand name. This would be evident from the fact that this brand name was mentioned in the invoices which were duly scrutinised by the jurisdictional Central Excise officers while finalising the RT-12 returns submitted vis- -vis duty paid documents and declarations filed under erstwhile Rule 173B of the said Rules. The Central Excise audit department as well as the Anti Evasion department personnel who visited the appellant s factory and verified statutory records periodically also did not raise any query or objection in respect thereof. As such, it was submitted, that for this reason also there can be no invocation of the extended period of limitation as held by the Supreme Court in the following cases:- (i) Pushpam Pharmaceuticals Co. Vs. CCE, 1995 (78) ELT 401 (SC) (ii) O.K.Play (India) Ltd. Vs. CCE, 2005 (180) ELT 300 (SC) (iii) Pahwa Chemicals Prt. Ltd. Vs. CCE (Supra) 7. By the impugned order, the Commissioner has also confirmed a duty demand of ₹ 8,21,553.25 on the ground of alleged clandestine removal of 4054 pieces of GLASSPOLL b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1AC is also inapplicable and, therefore, the penalty imposed under Section 11AC of the Act is unsustainable. The provisions of Rule 173Q are also not applicable. Reliance has been placed upon the following decision in support: (i) Union of India Vs. Rajasthan Spinning Weaving Mills, 2009 (238) ELT 3 (SC), para 18. (ii) P B Pharmaceuticals Vs. CCE, 2003 (153) ELT 14 (SC), para 22 (iii) Pahwa Chemicals Private Ltd. Vs. CCE (Supra). 9. On behalf of the respondent, the learned Special Counsel, Mr. D.K. Acharya, has reiterated the findings of the Commissioner in the impugned order. He further submitted that the issue on merits stood concluded in favour of the Department by several decisions of the Supreme Court. 10. Heard both sides and perused the appeal records. 11. The issue as to whether goods manufactured by a small scale unit under a brand name of a person who is the owner thereof as per permission to use such brand name or under assignment granted by such person for manufacture of different goods than that being manufactured by the brand name owner, is entitled to exemption in terms of small scale industry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name or mark with or without any indication of the identity of the person. Therefore, what follows from the reading of this Explanation is that if the brand name issued in relation to the specified goods indicating a connection in the course of the trade between such specified goods and some other person using the name, it would fit the description and the matter would be covered by the mischief of Explanation VIII. It is nowhere stated that brand name which is the name of other person and is being used by the SSI which is claiming benefit has to be in relation to same goods. Therefore, that could not have been reason to drop the proceedings and the CEGAT was not justified in dismissing the appeal of the Department on this ground. 7. The aforesaid principle of law is no more res integra and has been decided by this Court authoritatively in couple of judgments. In Commissioner of Central Excise, Chandigarh-I v. Mahaan Dairies (2004) 11 SCC 798 this Court while interpreting the similar nature of definition of brand name or trade name, held as under: We have today delivered a judgment in CCE v. Rukmani Pakkwell Traders wherein we have held in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption under Notification No. 1/93-CE, as held by the Commissioner in the impugned order. However, we agree with the contention made on behalf of the appellant that during the material period and until the decision of the Hon ble Supreme Court in CCE Vs. Mahaan Dairies, 2004 (156) ELT 23 (SC) there were number of decisions of the Tribunal, including the decision of the Larger Bench of the Tribunal in CCE Vs. Fine Industries, 2002 (146) ELT 53 (Tri-LB), which had held that in a case like the instant case, the user of the brand name obtained upon permission, including assignment from the brand owner, was eligible to benefit under the pari materia Notification No. 175/86-CE, unless the specified goods on which the small scale manufacturer used brand name belonging to another person was identical to the goods of such other person and, therefore, the extended period of limitation contained in the Proviso to Section 11A(1) of the Act is not applicable. In fact the decision of the Tribunal in the case of Collector of Central Excise Vs. Vikshara Trading Investment Pvt. Ltd. (supra) holding as such was affirmed by the Hon ble Supreme Court in Collector of Central Excise Vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee and the brand name owner, should manufacture identical goods. In the present case, the Assessee was using the brand name for a product other than shaving cream which was the product intended to be manufactured by the brand name owner. In these circumstances, the Tribunal took the view that the Assessee appears to have acted bona fide in making its clearances and claiming exemption from excise duty. Consequently, the Tribunal took the view that there was no warrant for extending the time of limitation beyond the period of one year under the proviso to Section 11A(1) of the Act. 5. We are of the view that opinion expressed by the Tribunal is well reasoned. There is no doubt that there was a conflict of views and that was resolved much later in the year 2002. The period with which we are concerned is 1998-1999 and 1999-2000 at which time the controversy had not been settled by the larger Bench of the Tribunal. The Assessee was justified in proceeding on the basis that it was exempt from excise duty particularly during the pendency of controversy. The demand of duty is thus to be restricted in this case also, to the normal period of one year. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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