TMI Blog2009 (6) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... emption nor could the respondent knowing that the mark belongs to another use the same. Thus this case clearly a case of suppression. - 34 of 2009 - - - Dated:- 11-6-2009 - <?xml:namespace prefix = st2 /> Ferdino I. Rebello and J.H. Bhatia, JJ. S/Shri R.V. Desai, Sr. Counsel with Rajinder Kumar, for the Appellant. S/Shri S.P. Mathew i/b. V.B. Kanoria, for the Respondent. [Judgment per: Ferdino I. Rebello, J.]. - Admit on the following question:- " 1. Whether CESTAT was justified in holding that non-declaration of brand name does not amount to suppression and hence the extended period of limitation would not apply? 2. Whether in the light of the fact that the assessee had full knowledge of brand name not belonging to them, have used the same and not disclosed to the Department, amounts to suppression of facts? 3. Whether the CESTAT was justified in holding that proviso (2) to Section 11(A) of Central Excise Act does not apply?" 2. A few facts may be set out. The Respondent admittedly was not the owner of the mark "Ram's" which belonged to M/s. Rammaica (India) Ltd., earlier known as M/s. Ram Decorative and industrial Laminate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue on merits but only on the ground of limitation and rightly so considering the order of the Supreme Court. The same argument has also been advanced before this Court. 5. To understand the issue it would be gainful to reproduce the relevant portion of Section 11A of the Central Excise Act, 1944 which reads as under:- "11A Recovery of duties not levied or not paid or short levied or short-paid or erroneously refunded. - (1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, whether or not such non-levy or non-payment, short-levy or short payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under any other provisions of this Act or the rules made thereunder, a Central Excise Officer may, within one year from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice. Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed owner of trade mark "Hotline" in respect of gas stove cannot be denied exemption in respect of gas stoves manufactured in their own brand name "Hotline". Clause 7 of the Notification was otherwise clear. That a manufacturer who uses the brand name of another manufacturer who was not entitled to exemption would not be entitled to the benefit of exemption under the Notification. 7. A second Notification came to be issued on 28th February, 1993. The relevant portion of this Notification reads as under:- "4. The exemption contained in this Notification shall not apply to the specified goods, bearing a brand name or trade name (registered or not) of another person........" 8. Clause 4 of the Notification of 1993 made it clear, that the Notification shall not apply to specified goods bearing a brand name or trade name of another person. The anomaly in the earlier notification in the matter of "brand" and "goods" was therefore, cleared. 9. It was sought to be contended on behalf of the respondents that there was a dispute amongst the various Tribunals and the High Courts in the matter of interpretation of clause 7 and Clause 4 and under these circumstances the Tribunal w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extended period. The learned Tribunal held that the question of affixing the brand name is a contentious one and the Respondents had been following the procedure by filing classification list and clearing the goods subsequently and as such the appellant has not erred in non-declaring the brand name in the classification list. Hence set aside the demand for duty for the period between October 1994 to 14th November, 1994. Also set aside the order of confiscation of the goods and confiscation of the vehicles. It may be mentioned that in respect of duty for the period between October, 1994 to 14th November, 1994 and penalty on the same remanded the matter for computation and consequential order. 12. The first question that arises for our consideration in the context of the extended period of limitation, is whether there was suppression by the respondents and whether at all, the Tribunal could have held that the issue was contentious. There is a factual finding that the Respondents in the classification list did not disclose the use of the brand name belonging to another person. In so far as the Notification of 1993 is concerned, a perusal of Clause 7 clearly sets out, that where a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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