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2019 (7) TMI 326 - AT - Central ExciseSSI Exemption - manufacture of branded goods - owner of brand name FIBA - brand name HARDWYN assigned - benefit of N/N. 8/2003-CE, dt.01.03.2003, as amended - time limitation - imposition of penalty - HELD THAT:- The appellant assessee is manufacturing excisable goods with brand names HARDWYN and FIBA. There is no dispute that the brand name FIBA is owned by the appellant assessee. As regards HARDWYN brand, it was stated by Shri. S.S. Sayal and Shri R.S. Sayal in their statements that HARDWYN brand is owned by Shri S.S. Sayal and is assigned to appellant assessee vide assignment deed dt.17.02.2006. So long the assignment deed in favour of the appellant remains valid, the appellant is entitled to exemption under Notification No.8/2003 CE dt.01.03.2003 as amended, in respect of goods bearing HARDWYN brand, manufactured by them. It is also alleged that the department has not investigated use of the brand name by the owner Mrs. Santu Devi - HELD THAT:- The description and nature of goods manufactured by the owner of the HARDWYN brand Mrs. Santu Devi is not on record. It is also not known whether the said owner is still using the said brand name on the products manufactured by her. In a catena of decisions, it has been held that bar of S.S.I. exemption in respect of branded goods is inapplicable if the brand name is used by the owner on different goods or the owner has abandoned use of the brand name - In the present case, since no attempt has been made by the department to find out the factual position as regards use or non-use of the HARDWYN brand by Mrs. Santu Devi, the denial of exemption merely on the basis of information regarding registration of HARDWYN brand in the name of Mrs. Santu Devi, without ascertaining the actual use of such brand name by the registered owner, is unsustainable. Alleged clearance of HARDWYN brand goods by the appellant assessee - HELD THAT:- There is absolutely no evidence to even suggest that the entire clearance made by the appellant assessee was only of HARDWYN brand goods - It is admitted fact that the appellant is also manufacturing goods with “FIBA‟ brand. This proves that the department has presumed the description and value of excisable goods cleared during the relevant period, for recovery of duty. It is settled law that duty cannot be demanded on assumptions and presumptions. In the present matters, since the description and value of the excisable goods has been presumed by the department, the demand of duty on basis of such presumed facts is unsustainable in law and hence has to be set aside - the demand of duty is set aside. Time Limitation - HELD THAT:- Appellant were under bonafide belief that they were using their own brand names and hence eligible to S.S.I exemption - It is well settled law that extended period of limitation is not available to the department in cases where the assessee entertains a bonafide belief about non-levy of central excise duty - Under the circumstances, the extended period was not available to the department in the present matter and the demand of duty is, therefore, hit by bar of limitation also. The interest is not payable and penal provisions of law are not attracted in these matters. Appeal allowed - decided in favor of appellant.
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