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2017 (6) TMI 670 - AT - Central ExciseSSI exemption - use of Brand name of others - N/N. 8/2001-CE - case of assessee is that they have not used the brand name/logo of VCNPL on the Ozone Water Purifier, as the packing is done by VCNPL in their premises after quality control checks and the logo/brand name is affixed/embossed on the packing before they are cleared to the customer - Held that: - N/N. 8/2001-CE, as existed during the relevant period, provided exemption from duties of excise for SSI units, subject to certain eligibility requirements and other conditionalities. Para-4 of the said Notification categorically denies the exemption contained in the Notification to goods bearing the brand name or trade name, whether registered or not, of another person, except in certain situations, which the appellants certainly does not qualify - the appellants have cleared the impugned Ozone Water Purifiers bearing the brand name/trade name of VCNPL. In consequence, they cannot then be a beneficiary of SSI exemption N/N. 8/2001-CE. In respect of the Ozone Water Purifier as also the magnetic kits, since manufactured bearing the trade name of others, will fall foul of para-4 of the SSI exemption N/N. 8/2001-CE, consequently they cannot avail of the duty exemptions extended in the said Notification. Classification of Magnetic kits - classified under 90.19 or otherwise? - Held that: - these Magnetic kits having been cleared with the brand name/trade name of others, will find themselves bereft of SSI duty exemption under Notification No. 8/2001-CE, they will nonetheless to be eligible for clearances under the effective rates thereof, which, is Nil and 4% for the period under dispute - differential duty liability on the impugned goods namely Magnetic kits will have to be calculated on the basis of effective duty rates as applicable to the goods under chapter heading 90.19 of CETA, viz., Nil upto 01.03.2002 and 4% after 01.03.2002 - matter remanded for denovo adjudication to the adjudicating authority to recalculate duty liability only in respect of this item. Penalty u/s 11AC - Held that: - penalty under Section 11 AC ibid will also be imposable in respect of Magnetic kits clearances. However, the quantum of penalty will be only be equal to the revised duty liability thereon re-determined by the adjudicating authority in denovo proceedings. Personal penalty imposed on Shri R. Radhakrishnan - Held that: - there is a plethora of decisions that once a firm is penalized, separate penalty is not imposable upon the partner of the firm, because partner is not a separate legal entity and cannot be equated with the employee of the firm - penalty imposed on Shri R. Radhakrishnan is set aside. Manufacture - Companion Kit - demand - Held that: - It is definitely a new product that evolved after assembling of various components purchased from the market. Before such assembly the product is not marketable and cannot be called a Companion Kit. Discernably the appellants are engaged in the manufacture of new product - duty demand upheld. Appeal allowed - decided partly in favor of appellant and part matter on remand.
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