9911796707
TMI Blog2008 (9) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... tion – exemption not deniable - E/892/2005 - 1020/2008 - Dated:- 2-9-2008 - Dr. S.L. Peeran, Member (J) and Shri T.K. Jayaraman, Member (T) Shri M.S. Nagaraja, Advocate, for the Appellant. Mrs. Sudha Koka, SDR, for the Respondent. [Order per : S.L. Peeran, Member (J)]. - This appeal arises from Order- in-Appeal No. 149/2005, dated 19-7-2005 passed by the Commissioner (A), Mangalore confirming demands in terms of Order-in-Original No. 1A/2005 dated 27-1-2005 passed by the Joint Commissioner of Central Excise, Belgaum in de novo on the directions of the Tribunal. 2. The appellants had been issued with five show cause notices proposing to deny the benefit of SSI Exemption under Notifications No. 175/86 and No. 1/93 as the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny viz., M/s. BKW Kalte - Warme - Varsorgungstechnik Gmbh, West Germany. They stated that merely because they have used the word "BKW" it does not mean that they were using the brand name of foreign company. They stated that the word "BKW" denotes that they are manufacturing the said product with the collaboration of the said company. They also denied the manufacture of the same goods as manufactured by the foreign company. They also submitted that as they were not using the brand name of another person more so of a foreign company, there was no suppression of facts and hence, larger period was not invocable for confirming the demands. 3. The appellant's pleas have been rejected in Order-in-Original as well as by the Commissioner (A). T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the appellant had paid valuable consideration for exclusive right to use the trade name of technical collaborator. The learned counsel relied on the following rulings of the Tribunal. (i) A.J. Bantex (P) Ltd. v. CCE, Bangalore - 2008 (229) E.L.T. 582 (Tribunal) = 2008 (87) RLT 135 (CESTAT-Bang.); (ii) Rakshak Farm Aids Pvt. Ltd. v. CCE (Appeals-II), Hyderabad - 2006 (74) RLT 54 (CESTAT-Ban.); (iii) Bhoruka Goldhofer Trailers Pvt. Ltd. v. CCE, Bangalore - 2008 (223) E.L.T. 97 (Tri.-Chennai); and (iv) CCE, Goa v. Primella Sanitary Products - 2005 (184) E.L.T. 125 (S.C.). 5.1 It is his submission that in terms of these judgments, the assessee is entitled to use the word "BKW" of the Ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecause they had an agreement with Bantex, a well known foreign brand name, that by itself will not disentitle them from the benefit of the Notification. 5.6 On the other hand, the learned SDR pointed out to the judgment rendered by the Supreme Court in the case of CCE, Trichy v. Rukmani Pakkwell Traders - 2004 (165) E.L.T. 481 (S.C.) wherein the Apex Court has clearly noted that when there is use of another person's name or colour pattern or logo, then the benefit of the Notification is not available. She also referred to the ruling of the Tribunal rendered in the case of Kenmore Vikas (India) Pvt. Ltd. v. CCE, New Delhi-IV - 2003 (158) E.L.T. 289 (Tri.-Del.) wherein the benefit of SSI Notification was denied, as the agreement al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g relied by the learned SDR in the case of CCE, Trichy v. Rukmani Pakkwell Traders (supra). The judgment of CCE, Goa v. Primella Sanitary Products (supra) is a judgment of three Hon'ble judges while CCE, Trichy v. Rukmani Pakkwell Traders (supra) has been rendered by two Hon'ble judges only. In the present case also, there is a valuable consideration of DM 30,000 for assigning the name and for transferring the technical know-how. Therefore, mere use of "BKW" on the product by itself will not disentitle the benefit of Notification as the appellants have paid valuable consideration for use of the said name. The learned SDR relied on the ruling of Kenmore Vikas (India) Pvt. Ltd. v. CCE, New Delhi (supra) wherein the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
