TMI Blog2012 (12) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... ld have to be reworked out accordingly As regards the issue of small scale exemption - extended period of limitation - Held that:- Non-declaration of use of other’s brand name despite having knowledge about the same, amounts to suppression - in regard to the demand relating to non-availability of small scale exemption, the extended period of limitation is applicable on the ground of suppression - matter remanded for the limited purpose of re-quantifying the duty demand in this regard to the original authority - penalty imposed under Rule 173Q - E/326/1994 - 140/2012 - Dated:- 16-2-2012 - Shri P.G. Chacko, Dr. Chittaranjan Satapathy, JJ. REPRESENTED BY : Ms. L. Maithili, Advocate, for the Appellant. Ms. Indira Sisupal, JDR, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scale exemption cannot be denied to the appellants. (f) The extended period of limitation cannot be invoked as the appellants were filing classification list and RT-12 returns regularly and they were under the bona fide belief that they were entitled to the small scale exemption. 4. While arguing the case, the Ld. Advocate Ms. Maithili did not press the claim for small scale exemption in view of various decisions of the Apex Court holding that using brand name of another, even if the same is used for a different product or is that of a trader or is partly used, the small scale exemption will not be available. However, she pleads that extended period cannot be invoked as the appellants were under the bona fide belief that they were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same is required for plate making and not for printing. She has then classified the impugned goods under heading 9009 which covers photocopying apparatus and thermo-copying apparatus. The appellants in their grounds of appeal have opted for the alternative classification under heading 8442. The adjudicating Commissioner has ruled out the classification of the impugned goods under heading 8442. 7. The two competing headings are as under :- 8442 : Machinery, apparatus and equipment (other than the machine-tools of headings Nos. 84.56 to 84.65), for type-founding or type-setting, for preparing or making printing blocks, plates, cylinders or other printing components; printing type, blocks, plates, cylinders and other printi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the grounds of appeal, the appellants themselves have opted for alternative classification under Heading 8442 and the same seems to be more appropriate than Heading 8443 or 9009, we order classification of the impugned Metal Halide Light Exposing System for Offset Printing plate making under Heading 8442. Parts of such system also get classified under the same heading. 9. As regards the classification of printing plate processor and parts thereof, we find that the adjudicating Commissioner took note of the oral submissions made at the time of personal hearing before her, and has accepted the alternative classification under Heading 8442 prayed for by the appellants themselves. We also find that the same classification is proper as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that even though the demand on account of denial of small scale exemption, is sustainable on merit, the same cannot be sustained for extended period as the appellants were under the bona fide belief that they were entitled to the small scale exemption at the material time. In support, she has also cited the majority decision of the Tribunal in the case of Janta Rubber Distributors (supra). We have considered the argument of the Ld. Advocate in this regard. The majority decision in the case of Janta Rubber Distributors (supra), was that non-mention of brand name in the assessee s declaration and in the sale invoices are not treatable as mala fide in the circumstances of that case. The minority view in that case was that there was no materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that once certain vital information is suppressed by the assessees there is no bar in invoking proviso to Section 11A (1) of Central Excise and Salt Act, 1944. As M/s. Proteck had not disclosed the vital information regarding affixing of brand name of Novalith on the plate Processors supplied to M/s. Technova which is a vital factor to determine the eligibility of Exemption, I hold that there is every justification to invoke proviso to sub section (1) to Section 11A of Central Excise and Salt Act, 1944, in this case. 12. The above findings of the adjudicating Commissioner point to the fact that the appellants had suppressed the use of the brand name of M/s. Technova on the impugned goods. In case the appellants were under a bona fide be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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