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TMI Blog2005 (9) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... inted. One of the Directors of the assessee, Shri Chandraksekaran admitted that they were using the brand name 'Cookie Man' belonging to the Australian company, but added that they had obtained permission for using it in India. He also claimed that the 'cookies' were different from biscuits and were classifiable under SH 1905.90 of the CETA Schedule. The officers could gather evidence indicating that 'cookies' were nothing but biscuits. From the results of the investigations, it appeared to the department that the 'cookies' manufactured by the assessee were classifiable as biscuits under SH 1905.11 and that SSI exemption was not available to the 'cookies' which were cleared under the brand name of others who were not eligible for SSI exempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not eligible for the benefit of SSI exemption. Ld. SDR has reiterated this case of the Revenue. Ld. Counsel countered the above argument on the strength of the Supreme Court's judgment in CCE v. Superex Industries - 2004 (174) E.L.T. 4 (S.C.) and the Tribunal's decisions in the cases of Connaught Plaza Restaurant Pvt. Ltd v. Commissioner - 2003 (154) E.L.T. 187 and Sai Aditya Hotels Super Markets (P) Ltd - 2005 (186) E.L.T. 188 (Tri. - Bang.). We find that the Tribunal's decision in the case of Connaught Plaza Restaurant (supra) was relied on by the Commissioner to hold that, merely because the unbranded cookies were sold from the retail outlet which exhibited the brand name of 'Cookie Man', they could not be denied SSI benefit under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... items sold under the bills could not be held to be branded goods and accordingly SSI exemption under Notification No. 1/93-C.E. was held to be admissible to the said items. In the case of Superex Industries (supra), it was held by the Supreme Court that exemption under SSI notification was not deniable for the mere reason that the specified goods, though not branded, were cleared under invoices in which the brand name of another person was printed. Thus, we find, the Revenue's case is hit by the case law cited by ld. Counsel. The Commissioner has rightly allowed SSI benefit to the assessee in respect of the unbranded cookies sold at their outlets for immediate consumption. Hence we dismiss the appeal of the Revenue. 4. The assessee, in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt so as to be entitled to the benefit of Notification No. 8/2002. Ld. SDR has pointed out that this plea was never raised before the adjudicating authority. After considering the submissions, we are of the view that, as the credit of Rs. 8,529/- is said to be remaining unutilized, the case requires to be remanded to the Commissioner for verification of the fact pleaded by the Counsel and, in the event of the above credit still remaining unutilized, for considering the assessee's alternative plea for the benefit of Notification No. 8/2002. Accordingly, we set aside that part of the impugned order which is against the assessee and allow their appeal by way of remand, directing the Commissioner to readjudicate the case in accordance with law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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