TMI Blog2011 (6) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... ded period of limitation, the notice issued of 20th June, 2003 did not relate to the period more than five years. Being so, there is no substance in the point sought to be raised relating to bar of limitation. Cum duty price - held that:- on this issue matter remanded back. - E/1801, 2749-2750/2005 - 510-512/2011-EX(PB) - Dated:- 9-6-2011 - Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. REPRESENTED BY : Shri I. Beg, DR, for the Appellant. Shri S. Yadav Advocate, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President]. Heard the DR for the appellants and learned advocate for the respondents. Since common questions of law and facts arise in all these appeals they arise out of common order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority confirmed the demand of excise duty to the tune of Rs. 2,23,304/- against the respondents M/s. Raviera Pharmaceuticals Pvt. Ltd. in addition to Rs. 59/- for removal of medicines clandestinely, along with the interest besides ordering confiscation of medicines valued at Rs. 1,990/- while granting liberty of redemption on payment of redemption fine of Rs. 500/- and imposed equal amount of penalty. Penalty of Rs. 10,000/- was also imposed against M/s. Amedac Laboratories as well as against the two other respondents and the appeal carried against the same, the Commissioner (Appeals), Jalandhar by impugned order dated 27th January, 2005 allowed the same and set aside the order passed by the Adjudicating Authority, hence the present appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions, there was no justification for the Commissioner (Appeals) to set aside the order passed by the Adjudicating Authority. Our attention has also been drawn to the order passed by the Hon ble Bombay High Court in the matter of C.C.E., Thane-II v. Amit Engg. Works reported in 2008 (223) E.L.T. 166 (Bom.). 4. On the other hand, the learned advocate for the respondents submit that considering the decision of the Apex Court in Astra Pharmaceuticals (P) Ltd. v. Collector - 1995 (75) E.L.T. 214, no fault can be found with the impugned order. Mere use of the brand name for an ornamental purposes cannot be said to have use the brand name in the course of trade as rightly held by the Commissioner (Appeals). He further submitted that the demand r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same by speed post. He also produced for our perusal a speed post receipt in that regard. However, the said receipt is affixed to a copy of the application for adjournment. There is no proof placed before us which could convince us that the respondents had in fact filed cross-objection. Mere sending of the cross-objection by post is not sufficient. In that regard, a party desires to file such cross- objection has to comply with the rules in that regard. 6. It cannot be disputed that the law as regards the scope of the expression brand name of other person has been settled by the catena decisions of the Apex Court including the decision in the matter of C.C.E., Trichy v. Rukmani Pakkwell Traders (supra) and C.C.E., Chandigarh-I v. Mahaan D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat regard cannot be sustained. 9. As regards point of limitation is concerned, there is absolutely no substance in that regard as admittedly while availing the SSI exemption, the respondents were not filing any declarations or other documents which could reveal the relevant facts to the department, besides the fact that it was only pursuant to the raid conducted on 22nd February, 2003, that department came to know about the relevant facts that the respondents were clearing the goods with the use of logo of another person and yet had been availing the benefit of SSI exemption. The relevant facts being suppressed that the department was entitled to invoke extended period of limitation, the notice issued of 20th June, 2003 did not relate to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of demand of duty in that regard. There is also no case for interference as regards demand of interest and imposition of penalty is concerned. However, only regarding the issue of cum-duty price sought to be raised by the respondent M/s. Raviera Pharmaceuticals Pvt. Ltd. while setting aside the impugned order the Appeal Nos. E/2749/05 and 1801/05 are allowed in toto and while setting aside the impugned order in the appeal No. 2750/05, the matter in that appeal is remanded to the Commissioner (Appeals) to decide the point of cum-duty price in accordance with the provisions of law, while it is made clear that the scope of inquiry in the said appeal before the Commissioner (Appeals) shall be strictly restricted to the said issue only. Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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