TMI Blog2018 (8) TMI 793X X X X Extracts X X X X X X X X Extracts X X X X ..... person and in case the same was pertaining to any other person it was also required from them to have paid the appropriate central excise duty on manufacture and clearance of such branded goods. It is a settled law that it is the onus of ensuring compliance of the conditions of the notification are to be made by the person who is availing the benefit of such exemption notification - It is a matter of record now that the appellant/assessee have been using the brand name of other persons and thus the SSI notification benefit N/N. 8/2003-CE is certainly not available to them as per the conditions provided thereunder. Time Limitation - Held that:- The onus of proving that the conditions of notification are not being violated rest with the person availing the benefits of such notification, the assessee has failed in ensuring the proper compliance of the conditions mentioned in the N/N. 8/2003-CE and, therefore, the extended time proviso under Section 11A of Central Excise Act, 1944 is invokable in this case. Appeal dismissed - decided against appellant. - Excise Appeals No. 51145-51146 of 2017 - Final Order No. 52771-52772/2018 - Dated:- 13-8-2018 - Hon ble Shri Anil Choud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r various judgments that mere failure to declare certain facts does not amount to mis-declaration, that the suppression must be with intent to evade payment of duty and there should be a deliberate pro-active action on the part of the assessee. The learned Advocate has cited various judgments of Tribunal as well as Hon ble Supreme Court which are as follows :- i) Pahwa Chemicals Pvt. Ltd. vs. CCE 2005 (189) E.L.T. 257 (S.C.) ; ii) Cosmic Dye Chemical vs. CCE 1995 (75) E.L.T. 721 (S.C.) ; iii) Tamilnadu Housing Board vs. CCE 1994 (74) E.L.T. 9 (S.C.) ; iv) Chemphar Drugs Liniments vs. CCE 1989 (40) E.L.T. 276 (S.C.) and v) Fluid Synthetic Incorporation vs. CCE 2007 (210) E.L.T. 126 (T). 3. We have also heard learned AR who has reiterated the findings of order under challenge. 4. We have heard both sides and perused the record of the appeal. 5. It is a matter of fact as admitted by the appellant/assessee that the brand name Surya Gold and Luxmi does not belong to them and both the brand names are registered in the name of some other persons. The Department has also come to know about this fact only when they have referred to the website o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nputs for further manufacture of any specified goods within the factory of production of the specified goods. Nil 2. The exemption contained in this notification shall apply subject to the following conditions, namely : - (i) a manufacturer has the option not to avail the exemption contained in this notification and instead pay the normal rate of duty on the goods cleared by him. Such option shall be exercised before effecting his first clearances at the normal rate of duty. Such option shall not be withdrawn during the remaining part of the financial year; (ii) while exercising the option under condition (i), the manufacturer shall inform in writing to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise with a copy to the Superintendent of Central Excise giving the following particulars, namely :- (a) name and address of the manufacturer; (b) location/locations of factory/factories; (c) description of inputs used in manufacture of specified goods; (d) description of specified goods produced; (e) date from which option under this notification has been exercised; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or propylene. 4. The exemption contained in this notification shall not apply to specified goods bearing a brand name or trade name, whether registered or not, of another person, except in the following cases :- 6. It can be seen from above that condition No. 4 categorically mentions that exemption benefit under the above-mentioned notification shall not apply to the goods bearing a brand name or trade name whether registered or not of another person. We are of the view that the person availing the benefit of the notification (which provides exemption from payment of duty) has to ensure or take necessary precautions before availing the benefit of such exemption notification. It is expected from the person availing the benefit of any notification that he himself has to be sure and meet all the conditions of such notification before making any claim of benefit. We find that it was the duty of appellant/assessee to ensure that the brands used by them does not pertains to any other person and in case the same was pertaining to any other person it was also required from them to have paid the appropriate central excise duty on manufacture and clearance of such branded goods. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notification benefit No. 8/2003-CE is certainly not available to them as per the conditions provided thereunder. Regarding the contention of the appellant that the show cause notices is hit by period of limitation, since they have been filing their quarterly returns to the Department, wherein brand names of their products are also provided in this regard we do not subscribe the argument taken by the learned advocate. We are of view that as per their own assertion they have been using the brand name of Surya Gold and Luxmi for the last 15 years and they were not knowing that these brands are registered in the name of some other person, we are of the view that as Hon ble Supreme Court has held in the case of CCE, Delhi vs. Ace Auto Comp. Ltd. (supra) that it is the duty of the appellant/assessee to ensure that they do not use the brand name of the other persons manufacturing the goods and clearing the same after availing the small scale industries notification benefit. In this regard we are of opinion that onus of proving that the conditions of notification are not being violated rest with the person availing the benefits of such notification, we find that assessee has failed in ensu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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