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TMI Blog2024 (9) TMI 457X X X X Extracts X X X X X X X X Extracts X X X X ..... 11AC of Central Excise Act, 1944 - period from October 2010 and March 2011. HELD THAT:- The issue stands settled by the decision of the Tribunal in their case [ 2016 (10) TMI 136 - CESTAT MUMBAI ]. On the last occasion, the Tribunal, taking note of the facts and circumstances, had remanded the matter back to the original authority. Thus, the impugned order is set aside - matter remanded back to the original authority for decision in accordance with the law as settled by judicial determination. - HON BLE MR C J MATHEW , MEMBER ( TECHNICAL ) And HON BLE MR AJAY SHARMA , MEMBER ( JUDICIAL ) Shri Viraj Reshamwala , Advocate for the appellant Shri P K Acharya , Superintendent ( AR ) for the respondent ORDER PER : C J MATHEW This appeal lies ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the competent authority. It was also contended that, for the period from October 2010 and March 2011, the demand confirmed by the first appellate authority had been set aside and remanded to the original authority for a decision in the light of the order of the Tribunal in re Jamal Bakery. 4. We have heard Learned Authorized Representative. 5. We find that the present dispute is limited to recovery of duty of ₹ 79,982/- under section 11A of Central Excise Act, 1944 along with interest under section 11AA of Central Excise Act, 1944 besides imposing penalty of ₹ 79,982/- under section 11AC of Central Excise Act, 1944 that the issue stands settled by the decision of the Tribunal in their case. On the last occasion, the Tribunal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon ble Supreme Court in Meghraj Biscuits (supra) also has held that registration with the trade mark registry cannot be the sole criteria for allowing or denying SSI exemption. We find that the Hon ble Apex Court in the case of Stingen Immuno Diagnostics (supra) has held that there should be a connection/nexus between the brand name, the product, the person and the use of same/similar brand name belonging to someone else, for denying the SSI benefit. On a careful consideration of the aforesaid judgments of Hon ble Apex Court, one has to come to a conclusion that if someone is manufacturing any product bearing a brand name of another person, benefit of SSI exemption is not available to such person, which emphasis that there should be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n their products. It was the submission of the appellants that till the proceedings initiated by the Dept. they were not aware that the brand name Kwality used by them on their products was registered in the name of someone else, including M/s. Pure Ice Cream Co. Therefore, we are of the view that the Adjudicating Authority s findings in Para 34 of the impugned Order dated 31-7-2006 that the appellants had suppressed from the Department their manufacture of Kwality branded products, despite the fact that this brand did not belong to them, lacks credence and the Dept. have not brought any evidence to support such an allegation. We find that even today the Appellants are claiming that the brand name Kwality , in the manner style used by them, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or cum-duty benefit, we find that since the Adjudicating Authority has already granted the benefit of cum-duty in the Order impugned in the first appeal (E/3158/2006) and the same has not been challenged by the Dept. Therefore, we are of the view that the benefit of cum-duty should be extended to the appellants in remaining matters also. This issue also needs to be looked into by the Adjudicating Authority in the de novo proceedings. 5.4 So far as the penalty imposed is concerned, we find that the appellants were under a firm belief that they are the owners of brand name Kwality in the form in which it is used on their products no mala fides can be attributed to their claim of SSI exemption for the products. Be that as it may, even there we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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