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2016 (4) TMI 603 - CESTAT CHENNAIManufacture - assembling of imported and indigenous telephone parts - SSI exemption - adjudicating authority demanded excise duty and allowed SSI exemption benefit cum duty benefit and the cenvat credit on the inputs - Held that:- It is seen that the assessee supplied the Basic wired telephones to the “TATA INDICOM” who isonly a Telecom service provider and not engaged in manufacture of any excisable goods with Brand name and not registered under Central Excise. The telephone sets supplied by the appellant are not traded or sold to customers but are only rented to the customers while giving telephone connections to their customers. Further the Hon'ble Supreme Court decision of Kohinoor Elastics Pvt. Ltd. (2005 (8) TMI 115 - SUPREME COURT OF INDIA) relied by the revenue pertains to the Brand name of goods per se when the goods are sold and the Brand name / Trade name has connection with goods and the persons in the ordinary course of trade. In the present case TATA INDICOM is the name of the Telephone Service Provider and does not relate to any excisable goods sold by the service provider in the ordinary course of trade. Therefore, the Apex Court's decision is distinguishable and does not relate to the present case. Whereas we find that, the Boards Circulars dated 27.10.1994, 1.9.1994, 18.1.2000 are validly existing during the disputed period and the adjudicating authority rightly relied on the Circular dated 27.10.2014 wherein it is clarified that so long as the goods are supplied to the customer for further manufacture are not “traded”, the benefit of SSI exemption should not be denied, merely on the ground, that it contains brand name of another unit. The said Circular was valid till 1.9.98 and is binding on the Revenue during the material period and the adjudicating authority rightly followed the said circular. It is pertinent to state that after the apex Court's decision in Kohinoor Elastics Pvt. Ltd. case the government amended the SSI notification vide Notification 47/2008 dt.1.9.2008 allowing SSI benefit to specified goods bearing the brand name of others. In effect, the Board's circular has been brought in the statue itself. Therefore, there is no merit in the impugned order in allowing SSI exemption benefit on the goods bearing the name of TATA INDICOM. Further the appellants imported all the parts of telephone set including the outer cover, packing materials and the said parts already bearing the name of “TATA INDICOM”. This confirms that the appellant, have not affixed the brand name “TATA INDICOM” while clearing the said goods and the revenue's plea that the overseas supplier embossed the name as per the direction of the appellants is not relevant and not acceptable. Therefore, the Honble Supreme Court's decision in the case of Collector Vs Vimal Printery [ 1999 (9) TMI 957 - SUPREME COURT] is squarely applicable to the present case and the adjudicating authority has rightly relied on the above judgement in his order. In view of the above facts, we hold that the Telephones cleared by the appellants bearing the name of “TATA INDICOM” to the telephone service provider does not amount to usage of other's Brand to attract para-4 of SSI notification and we do not find any infirmity in the impugned order to the extent of allowing SSI exemption benefit to the goods cleared bearing the name of “TATA INDICOM”. The revenue appeal is liable to be rejected. Denial of SSI exemption on the goods bearing the name of “SANTEL” is a brand name of other manufacturers or not - Held that:- The appellants are entitled to SSI exemption benefit on the goods cleared with brand name of "SANTEL". Having held that the appellants are eligible for SSI exemption for the goods bearing “SANTEL” and “TATA INDICOM”, we find that the value of clearance for the years 2002-2003 to 2005-06 are well within the SSI exemption limit, therefore demand of Excise duty does not arise. Consequently the imposition of penalty goes. Accordingly the impugned order is liable to be set aside.
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