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2015 (10) TMI 623 - AT - Central ExciseDenial of SSI Exemption - Use of third person brand name - Held that:- Appellants were using the brand name belonging to other persons M/s. Inder Rubber Industries were using the brand name "Exide Super" while the brand name "Excide" belongs to M/s. Exide Industries Ltd. and also the brand name "Boxer" belonging to M/s. Bajaj Auto, M/s. Exide Rubber Industries were using the brand name "Exide" belonging to M/s. Exide Industries Ltd. The goods being manufactured by the brand name owners were different from the goods being manufactured by the appellants on which these brand names were being used. In this factual background, in view of the Apex Court's judgment in the case of ACE Auto Comp. Ltd. (2010 (12) TMI 25 - Supreme Court of India) and Mahaan Dairies (2004 (2) TMI 73 - SUPREME COURT OF INDIA), the benefit of SSI exemption would not be available. - Therefore, the Commissioner (Appeals)'s order denying the SSI exemption to the appellant has to be upheld. However, as regards the question of limitation is concerned, we find that during the period of dispute, there were a series of judgments of the Tribunal and also Larger Bench of the Tribunal in the case of Fine Industries (2002 (10) TMI 114 - CEGAT, COURT NO. II, NEW DELHI), wherein it was held that use by an assessee of the brand name belonging to another person would not result in denial of SSI exemption, if the goods being manufactured by the assessee are different from the goods being manufactured by the brand name owner and in respect of which the brand name is registered. In view of this, we hold that there was scope for doubt in the mind of assessee regarding availability of SSI exemption and hence, in view of the Apex Court judgement in the case of Continental Foundation Joint Venture Vs.CCE reported in [2007 (8) TMI 11 - SUPREME COURT OF INDIA], the longer limitation period of 5 years from the relevant date would not be available and for the same reason, there would be no justification for imposition of penalty on the appellant under Section 11 AC. While the Commissioner (Appeals)'s order denying the SSI exemption is upheld, the duty demand would be confined only to normal limitation period. The imposition of penalty under Section 11 AC is also set aside - Decided partly in favour of assessee.
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