TMI Blog2003 (2) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Revenue. Consequently, we hold that the CEGAT erred in confirming the order of the Collector. As about the penalty imposed on the assessee it is not in dispute that if the proviso to Section 11A of the Act cannot be called in aid, imposition of penalty cannot be justified under Rule 173Q of the Central Excise Rules, 1944. [See: Collector of Central Excise v. H.M.M. Ltd., 1995 (1) TMI 70 - SUPREME COURT OF INDIA ] and Nagpur Alloy Castings Ltd. v. Collector of Central Excise [ 2002 (4) TMI 58 - SUPREME COURT OF INDIA ]. The order imposing penalty is thus unsustainable. In favour of assessee - 3969 of 1995 - - - Dated:- 19-2-2003 - Syed Shah Mohammed Quadri and Ashok Bhan, JJ. [Order]. - This appeal, by the assessee, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded and para 7 was inserted therein. 6.On January 27, 1988 and, thereafter, on July 26, 1988 show cause notices were issued to the assessee on the ground that the assessee and its distributor, M/s. Pharmachem Distributors, have mutual interest and, therefore, the price at which the distributor sold the goods in the market ought to be adopted for the purposes of levy of excise duty on the assessee. The proceedings pursuant to these show cause notices were also dropped by the Assistant Collector, after considering the reply of the assessee, by order dated September 26, 1988. 7.A fourth show cause notice was issued to the assessee on June 12, 1990. The present appeal arises out of those proceedings. The said notice is very lengthy but it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enge before us. 12.Mr. Lakshmikumaran, the learned Counsel appearing, for the appellant, contends that so far as the demand of duty on the basis of the distributor being a related person is concerned, all facts in this regard were placed before the concerned authorities and, therefore, there has been no suppression of fact; in any event, submits the learned Counsel, when the show cause notice was issued in 1985 and, thereafter, when two more show cause notices were issued in 1988, all these facts were before the concerned authorities, therefore, it was not open to the Central Excise authorities to invoke proviso to Section 11A of the Act for making a demand of duty for the extended period. 13.Mr. Jaideep Gupta, the learned Senior Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brought to the notice of the authorities at different intervals from 1985 to 1988 and further, they had dropped the proceedings accepting that M/s. Pharmachem Distributors was not a related person. It is, therefore, futile to contend that there has been suppression of fact in regard M/s. Pharmachem Distributors being a related person. On that score, we are unable to uphold the invoking of the proviso to Section 11A of the Act for making the demand for the extended period. 15.The second question relates to availing of exemption after the insertion of para 7 in Notification No. 175/86-C.E., dated March 1, 1986. Para 7 reads as follows : The"7. exemption contained in this notification shall not apply to the specified goods where a manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem with a logo - brand name or trade name - of another person who is not eligible for the exemption that he becomes ineligible to avail the benefit under the notification. Use of the logo of the manufacturer by other person, whether a assignor or a third party, has no relevance for purposes of para 7. That is not the import of Explanation VIII. 18.Insofar as the order of the Collector, Central Excise, is concerned, it appears that documents were filed before the Collector to prove assignment of the "logo" in favour of the appellant but on the ground that they were not legible, the Collector declined to take note of them. In any event, he did not accept the assignment of logo and proceeded on the footing that the assignment of logo in fav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the matter, we are unable to uphold the order of the Tribunal denying the exemption to the assessee. 20.In any event, the ground that the assessee has suppressed the fact that M/s. P B Laboratories was also using the logo for availing the benefit under the notification cannot be a valid reason to invoke the proviso to Section 11A of the Act. There is no obligation on the owner of a logo to make a roving enquiry to ascertain whether any other person is also using his logo and disclose it to the authorities to avert a possible allegation of suppression of fact for purposes of invoking the proviso. 21.For all these reasons, we are of the view that the proviso to Section 11A is not available to the Revenue. Consequently, we hold ..... X X X X Extracts X X X X X X X X Extracts X X X X
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