TMI Blog2012 (6) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... a trade mark belonging to the foreign firm so long as the said unit is exclusive owner of the said trade mark in India - in favour of assessee. Whether the price at which the respondent sold the product should be treated as cum duty price and therefore the excise duty should be deducted from the price for arriving at the assessable value – Held that:- The case to be remanded back to the Commissioner for re-quantification. - E/774/2004, E/847/2004 - - - Dated:- 2-5-2012 - Smt. Archana Wadhwa, Dr. Chittaranjan Satapathy, JJ. Shri G. Natarajan, Advocate, for the Assessee Ms. Indira Sisupal, JDR for the Department Per Dr. Chittaranjan Satapathy Heard both sides. 2. The appellants manufacture biscuits bearing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision in the case of Union of India Vs. Paliwal Electricals (P) Ltd. 1996 (83) ELT 241 (SC) which held that if a small scale manufacturer affixes the brand name of another person who is not eligible for the exemption under the notification then the said person cannot get the SSI exemption. He has held that since the foreign companies are not eligible for the benefit of small scale exemption, the appellants using their brand name are also not eligible for the SSI exemption. He also relied on the decision of the Tribunal in the case of Sonama Aromatics (P) Ltd. Vs. CCE 1995 (78) ELT 285, wherein the Tribunal has held that the benefit of SSI exemption would not be available if a manufacturer acts as an agent of the foreign company. The lower ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g brand name of any other person. 7. In the course of hearing, the learned counsel for the appellants also relies on the decision of the Hon ble Supreme Court in the case of CCE, Meerut Vs. Convertech Equipment Pvt. Ltd. 2011 (272) ELT 342 (SC), wherein the Hon ble Supreme Court has held as follows:- Before the Tribunal, the following two points were raised by the assessee-respondent. 1.Whether the price at which the respondent sold the product should be treated as cum duty price and therefore the excise duty should be deducted from the price for arriving at the assessable value. 2.Whether affixation of brand name of a foreign company but otherwise registered in the name of the Indian company would disentitle the Indian compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision of the Hon ble Calcutta High Court in the case of Esbi Transmissions Private Ltd. Vs. Collector of Central Excise 1997 (91) ELT 47 (Cal.), in which it has been held that there is no bar to availing SSI exemption if the unit is using a trade mark belonging to the foreign firm so long as the said unit is exclusive owner of the said trade mark in India. 8. The learned DR, on the other hand, supports the impugned order for the reasons recorded therein. Further reliance is placed on behalf of the Department on the decision of the Tribunal and the Hon ble Supreme Court in the cases of Vee Gee Faucets Pvt. Ltd. Vs. CCE, Gurgaon 2010 (259) ELT 273, CCE, Bangalore Vs. Meyer Health Care Pvt. Ltd. 2011 (267) ELT 145 (SC) and Meghraj Biscui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not available when the brand name Tetenal belonging to the foreign collaborator was used. In Meghraj Biscuits (supra) and in Meyer Health Care (supra), the Hon ble Supreme Court held that retrospective date of registration as applicable under trade mark law cannot be extended to excise law for the purpose of small scale exemption and the assessee was not entitled to take benefit of an assignment deed for the said purpose. 10. However, we find that in the case of CCE, Goa Vs. Primella Sanitary Products 2005 (184) ELT 125 (SC), the Hon ble Supreme Court upheld the order of the Tribunal that in view of the assignment, the assessee in that case was entitled to use the mark Comfit always and that as long as the assignment stands, the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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