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2014 (12) TMI 111 - AT - Central ExciseSSI Exemption - use of Brand Name of others - Confiscation of goods - Redemption fine - Penalty u/s 11AC - Held that:- Brand name or trade name need not be registered. So long as the said name indicates a connection in the course of trade between the goods and some person using such name it would suffice. - there is a connection between the name ‘Electron’ and M/s. Electron Industries Ltd. during the course of trade. Therefore, the name ‘Electron’ printed on the carboys satisfies the definition of brand name as defined in law. Inasmuch as the said name does not belong to M/s. Chemipol, they are not eligible for the benefit of Notification Nos. 9/2001 and 9/2002 and, therefore, they are liable to discharge full duty liability on the goods manufactured and cleared. In this view of the matter, the demand of duty confirmed on the appellant of ₹ 1,32,919/- under Section 11A(2) is clearly sustainable in law. Once the duty demand is held sustainable, interest liability automatically accrues and consequently, the appellant is liable to discharge interest liability on the duty demand confirmed against them. As regards the liability to confiscation of the goods seized from the premises of M/s. Chemipol and M/s. Electron Industries Ltd., the said goods have been cleared without payment of appropriate duty. Therefore, the goods are correctly liable for confiscation. The question is since the goods have been provisionally released, whether the redemption fine imposed is reasonable or excessive. The redemption fine of ₹ 60,000/- has been imposed on M/s. Chemipol in lieu of confiscation in respect of goods valued at ₹ 2,37,850/- and a fine of ₹ 30,000/- has been imposed on M/s. Electron Industries Ltd. in respect of the goods valued at ₹ 1,18,000/-. The purpose of imposing of redemption fine is to take away the profit margin which is available on goods. There is no evidence on record to show what is the profit margin on the impugned goods. In the absence of any such evidence, normally this Tribunal has been imposing a fine equal to 10% of the value of the goods. Therefore, following the same, in the present case also, we reduce the redemption fine. Since it relates to interpretation of law, we do not find any reason for imposition of penalty. Accordingly, the penalty is set aside on M/s. Chemipol and Shri Sajjan Kothari. As regards the penalty imposed on M/s. Electron Industries Ltd. and Shri Anil Patel, the liability to pay duty is on M/s. Chemipol and not on the buyer; therefore, it cannot be said that the buyer has violated any provision of the law. Therefore, the penalty on M/s. Electron Industries Ltd. and Shri Anil Patel are not sustainable. - Decided partly in favour of assessee.
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