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TMI Blog2002 (1) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of Central Excise, it appeared to the department that the brand name belonged to M/s. Tetenal Vertriebs GmBH, Germany and that the appellants were not eligible for the benefit of the Exemption Notification as they had cleared their products affixed with the brand name of 'another person who was not eligible for the benefit of the notification'. It further appeared to the department that the appellants had mis-stated and suppressed facts with intent to evade payment of duty on the goods. The department, therefore, by show cause notice dated 24-6-92, called upon the appellants to pay Central Excise duty of Rs. 32,25,465/- on the goods cleared during the aforesaid period as also to show cause why penalty shall not be imposed on them. The s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sification lists filed under Rule 173B of the CER, 1944. The adjudicating authority has found that the appellants had willfully mis-stated in their classification lists that they were the owners of the brand name "TETENAL". That authority has further found that the appellants had done so with intent to evade payment of duty by availing the benefit of Exemption Notification No. 175/86-C.E., dated 1-3-86. According to the adjudicating authority, the appellants were fully aware of the fact that the brand name was not owned by them and that it was, in fact, owned by their foreign collaborator viz. M/s. Tetenal Vertriebs GmBH of Germany. The adjudicating authority has, therefore, come to the conclusion that the extended period of limitation was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llector of Central Excise, New Delhi [2001 (134) E.L.T. 281 (T) = 2001 (42) RLT 997] 5.Ld. SDR Sh. M.D. Singh opposed the above arguments and submitted that the appellants were fully aware of the fact that, during the material period, the brand name "TETENAL" did not belong to them but belonged to their German collaborator. The appellants suppressed this material fact before the department with intent to evade payment of duty on the branded goods by wrongly availing the benefit of Notification No. 175/86-C.E. Urging us to reject the appellants' plea of bona fide belief, the DR relied on the Tribunal's decision in Amco Batteries Ltd. v. CCE, Bangalore [1999 (112) E.L.T. 665]. He submitted that there was no contemporary material on record t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which they stated, inter alia, as follows :- "We shall affix our brand name on finished goods which will be only our brand name viz. "TETENAL". We do not think that the above declaration was a categorical declaration to the effect that the brand name did belong to the appellants as on the date on which the classification list was filed, for the clause which reads "which will be only our brand name" is futuristic and cannot be taken to mean "which is our brand name". The said clause rendered the declaration ambiguous. Such a declaration has to be treated as mis-declaration in the light of the oral evidence of Sh. Vijay Prakash Katta. We note that Sh. Vijay Prakash Katta, Director of the appellant-company, in his statements given to o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o show that the material fact relating to ownership of the brand name was known to the department till their investigative results were available. The ratio of the Apex Court's decision in Pushpam Pharmaceuticals (supra) is, therefore, not applicable to the present case. The demand of duty is not hit by limitation. 7.We have noted yet another grievance of the appellants. They have submitted that the selling price of the goods was the cum-duty price and they were entitled to deduct the duty element from the sale price for the purpose of determination of assessable value of the goods in terms of Section 4(4)(d)(ii) of the Central Excise Act. In this connection, they have relied on the decision of this Tribunal in Sri Chakra Tyres Ltd. v. CC ..... X X X X Extracts X X X X X X X X Extracts X X X X
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