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TMI Blog2000 (9) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... ut on the Sanitary fittings by pasting stickers and also by affixing tickli on the body of the fittings; that all the respondents were availing exemption under Notification No. 175/86. Proceedings were started against them for demand of duty as brand name "ARK" in stylised script was brand name of M/s. Arkson Pvt. Ltd. Initially the matter was decided by the Collector, Central Excise who denied the exemption under Notification No. 175/86 holding that the respondents were affixing specified goods with the brand name of another person not eligible for the grant of exemption and also there was suppression on the part of the respondents. On appeal filed by the Assessees the Tribunal remanded the matter for de novo decision after arriving at a finding in regard to the eligibility to exemption of M/s. Arkson Pvt. Ltd. under Notification No. 175/86 and arrived at a definite finding in regard to other pleas of use of trade mark w.e.f. April, 1992 and other related matters concerning time bar. The Tribunal, however, gave specific finding that stylised "ARK" is a trade name of M/s. Arkson within the meaning of relevant para of Notification No. 175/86. 3.On remand the matter has been decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time limit is not called for. 5.Shri Ashok Kumar, learned DR, reiterated the grounds of appeal as contained in memorandum of appeals filed by the Revenue wherein it is mentioned that M/s. Arkson Pvt. Ltd. are traders which fact has been admitted by Ms. Arti Khanna, Executive Director, in her statement dated 22-1-1993 and 18-3-1993 and accordingly they were not eligible for small scale exemption under Notification No. 175/86 as they were only traders. Reliance has been placed on the decision of the Larger Bench of the Tribunal in the case of M/s. Namtech Systems Ltd. v. CCE, 2000 (115) E.L.T. 238 in which it was held that benefit of SSI exemption is not available to the specified goods, if they are affixed with the brand name of a foreign person or a trader who is not a manufacturer. It is further mentioned in the grounds of appeal that as C.I. castings were not specified goods, M/s. Arkson Pvt. Ltd. are not eligible for exemption under Notification No. 175/86; that the Commissioner (Appeals) placed reliance on the decision in the case of M/s. Deepika Engg. Co. v. CCE, 1998 (77) ECR 587 as in that case the brand name owner was a SSI unit; that the eligibility of a manufacturing u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he question of time limit, learned Advocate submitted that "ARK" in plain script belongs to M/s. Khanna Industries and M/s. Khanna Industries were small scale industry manufacturing goods and under these reasonable belief they availed of the exemption; that there was no intention on the part of the Respondents to evade payment of duty. 7.Shri K.K. Anand, learned Advocate, adopted the arguments of Shri Madhav Rao and in addition submitted that no declaration was filed by M/s. Arkson Pvt. Ltd. as C.I. castings were wholly exempted from payment of duty; that in any case non-filing of declaration will not affect the eligibility under Notification No. 175/86, if the requirements of Notification are fulfilled. He relied upon the decision in the case of Nirmal Rubber and Engg. Works v. CCE, 2000 (39) RLT 664 wherein it was held that the benefit of Notification No. 175/86 cannot be denied on the ground that there was no approved classification list. The availability of benefit of notification depends on the eligibility of manufacturer and is not depended on filing of classification list. He also relied upon the decision in the case of Punjab State Forest Development Corporation Ltd. v. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Works, 1999 (114) E.L.T. 1037 (T), in which it was held that it is not necessary for the Assessee to get each and every product manufactured by him endorsed in his registration certificate to get the benefit of all the items manufactured by him under notification No. 175/86. 10.We have considered the submissions of both the sides. The Appellate Tribunal in the case of Khanna Industries v. CCE, Chandigarh, 1996 (82) E.L.T. 109 held that Stylised "ARK" is a trade name of M/s. Arkson within the meaning of relevant para of Notification No. 175/86. The Tribunal in this order had remanded the matter for de novo decision for deciding the eligibility of exemption of M/s. Arkson Pvt. Ltd. under notification No. 175/86. Para 7 of Notification reads as under :- "The exemption contained in this notification shall not apply to the specified goods where a manufacturer affixes the specified goods with a brand name or trade name (registered or not) of another person who is not eligible for the grant of exemption under this notification." 11.In terms of para 7, the benefit of the notification shall be available to the specified goods even if a manufacturer affixes the specified goods with b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to M/s. Arkson Pvt. Ltd. if they manufacture any of the goods specified in the notification, in the light of the facts on record the answer will be in affirmative. Accordingly, it cannot be said that they are not eligible for the grant of exemption under the said notification. These views are strengthen by the decision of the Tribunal in the case of Deepika Engg. Co. relied upon by the Commissioner (Appeals) in the impugned order. In this case the appellants were clearing the excisable goods which were affixed with the brand name 'Flexican' belonging to M/s. Zaverchand Geakwad Ltd. who were a small scale steel industrial unit. The department had denied the benefit of the notification to the appellants on the ground that Zaverchand Gaekwad Ltd. had been closed from 1-4-1993 and were not manufacturing or clearing any goods and as such were not eligible for the notification. The Tribunal did not agree with the department and has held as under :- "The fact that Zaverchand Gaekwad Ltd. did not avail of the notification does not mean that it was not eligible for the notification. It satisfies the criteria with regard to being an SSI unit and value of clearances. If it choses to a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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