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2018 (1) TMI 1209 - AT - Central ExciseSSI Exemption - use of brand name of other person - Clandestine removal - parallel invoices - Held that: - M/s. TCL is issuing purchase order for supply of goods namely, Defoamer under the brand name Neelco. Neelco is the brand of M/s. NASCPL. It is also a fact on record that the appellant is not using the said brand name on their products. Moreover, on the invoices also, the said brand name is not found mentioned in the invoices. These facts are not in dispute - However, we find that during the course of investigation, certain goods were found having the brand name of NASCPL. In that circumstance, the appellant cannot absolve their liability of using the brand name of another person, therefore, using the brand name of another person on the said goods found in their factory - similar issue came before the Hon'ble Apex Court in the case of CCE, Ahmedabad vs. Vikshara Trading & Invest Pvt. Limited [2003 (8) TMI 49 - SUPREME COURT OF INDIA] wherein the Hon'ble Apex Court observed that if there was an assignment of trademark in fact of the assessee, the mere fact that the assignment deed is not registered can not alter the position - as the appellant is using the brand name of another person but it was by way of assignment deed. In that circumstances, the appellant is not using the brand name of another person but they are using their own brand name as assigned to them - benefit of SSI exemption N/N. 08/2003-CE dated 01.03.2003 cannot be denied to the appellant. Clandestine removal - parallel invoices - Held that: - The Revenue has not come up with any positive evidence contrary to the explanation given by the appellant. Therefore, the Revenue has failed to come up with positive evidence in support of clandestine removal of goods. As no corroborative evidence has been produced by the Revenue and allegingd that on the strength of parallel invoices the appellant has cleared the goods, then the allegation of clandestine removal is not sustainable when M/s. TCL itself has explained that the explanation given by the appellant at the time of investigation is in terms of purchase agreement and monthly invoices has been raised as per purchase agreement - demand set aside. Appeal allowed - decided in favor of appellant.
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