9911796707
TMI Blog2003 (9) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... , and avail of small scale exemption; that the Commissioner, under the impugned order, has held that they are not eligible to small scale exemption as their goods bear the brand names of foreign company. The learned Advocate further, submitted that the goods bear the brand name "KMP"; that KMP is the brand name of the foreign supplier of technical know-how with whom they had entered into a Joint Venture Agreement and Trade Mark Royalty Agreement; that as per the Trade Mark Royalty Agreement, they had obtained exclusive rights for using the trade mark in India; that the impugned goods are components of car air conditioners and are required as per the design and specifications of the buyers; that the Central Board of Excise Customs, under C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho uses the same brand name on identical goods; that the Revenue has not shown that identical goods were manufactured by the foreign company; that the Revenue has also not shown that identical goods bearing the brand name of the foreign collaborators were available in the market so that they become indistinguishable with goods manufactured by them. 4.1 He also mentioned that the demand has been calculated incorrectly; that the demand includes the duty on account of alleged wrong classification, a point which has been decided in their favour and conceded in the impugned order; that secondly, the price has to be treated as cum-duty price and abatement of duty has to be allowed. Reliance has been placed on the decision in Srichakra Tyre Limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to pay royalties for the use of KMP trade mark to Labeken Holding AG and for use of know-how to KIT; that thus they were paying Royality for use of trade name which belonged to M/s. Labeken Holding AG; that the mischief of Para 4 of the notification is attracted as the goods were bearing the brand name of another person. He, further, submitted that the fact that the goods bearing the brand name is used for further use would not make them eligible goods for small scale exemption as the impugned goods bear the brand name of another person and are being traded in the market as their customers purchase the same. He also contended that extended period of limitation is invocable as they had suppressed the fact of use of brand name of another p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. We do not agree with the learned Advocate that Board's Circular dated 27-10-1994 applies to the facts of present matter as the finished goods manufactured by them are not traded since the same are used by their buyers in the manufacture of car air conditioner. We observe that the Appellants are not manufacturing the Receiver Driers with the brand name of their customers. Instead they are manufacturing the same under the trade name of a foreign company who has permitted them to use the same on payment of royalty. The finished goods manufactured by them bearing the brand name of foreign company are being purchased i.e. traded by them to their customers, no doubt for being used in the manufacture of car air conditioner. Circular dated 27-10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee's manufactured goods. Thus, we hold that the benefit of SSI exemption is not available to the Appellants and they are liable to pay the Central Excise duty for the entire period covered by both the show cause notices issued to them. We, however, agree with the learned Advocate that the price has to be treated as cum-duty price and the assessable value has to be re-determined after allowing the abatement of duty now payable by them as held by the Larger Bench of the Tribunal in the case of Srichakra Tyres, as affirmed by the Supreme Court as reported in 2002 (142) E.L.T. A279. We, therefore, remand the matter to the Adjudicating Authority to recalculate the amount of duty. We also direct the Commissioner to consider the contention o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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