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2019 (12) TMI 281 - AT - Central ExciseBenefit of N/N. 8/2003 – CE dt. 01.03.2003 - use of brand name of others - the impugned order has mainly confirmed demand on the ground that the Appellant unit is not entitled for the SSI exemption as they have sold machines bearing the trade/ brand name “Bhayani” - whether the Appellant M/s Om Synthetics are entitled for the benefit of SSI notification No. 8/2003 – CE dt. 01.03.2003 where the goods bearing brand name “Bhayani” was cleared by them and also whether demand of duty against both the Appellant is sustainable on alleged removal of goods without payment of duty? HELD THAT:- In terms of co-ownership agreement entered into M/s Bhayani Engineering Co. on one part and M/s Om Synthetics and M/s Thakar Traders on second part for use of Trademark “Bhayani” on co-ownership basis. Thus it cannot be said that the said brand name is owned by others and hence the exemption cannot be denied. We also note that in case of M/s Thakar Traders, the other appellant the Appellate Authority has held that SSI exemption cannot be denied on ground of use of trade name “Bhayani” as it is co-owned - the Appellant are entitled for SSI Exemption on clearance of goods. Demand against M/s Thakar Traders - Supply of various types of wheels viz. Girder Wheels, Bruter wheels, Russian Wheels - HELD THAT:- The demand has been made on ground that the clearances made by Appellant are liable for duty. The Appellant has contended that the Russian bruter wheel was sent for jobwork of grinding without following the procedure under central excise rule or job work exemption notification and the goods came into existence only after grinding of wheels were completed - The activity of manufacture as per Section 2 (f) of the Central Excise Act was completed and Russian Bruter wheel came into existence after the jobworker under took the process of grinding. In such case when the procedure as contemplated under Exemption Notification No. 214/86 – CE dt. 01.03.86 was not followed the jobworker of the goods become liable for duty and the duty cannot be demanded from M/s Thakar Traders. We have also gone through the Annexure – ‘A’. The goods detailed therein were for testing as appearing in seized record. No investigation was made as to why this record was maintained. In absence of any investigation it cannot be concluded that the record pertains to clandestine clearances. In such case the demands cannot be confirmed without corroborative evidence. No independent and corroborative evidence has been brought to show any excess procurement of raw material or clearance of goods to buyer which can show that the Appellant cleared goods clandestinely - the charges of any clandestine removal against the Appellant are not sustainable - the fines and penalties imposed upon the Appellants set aside. Appeal allowed - decided in favor of appellant.
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