1997 (12) TMI 179 - AT - Central Excise

Summary

Issues:
Classification of product as "liquid gold" under central excise, entitlement to benefit of Notification 1/93, denial of exemption due to trademark use, financial hardship claim in stay application.

Classification Issue:
The appellant contended that "liquid gold" is an article of gold under Chapter Heading No. 7101.90 and entitled to nil rate of duty under General Notification 66. They argued against the Commissioner's classification under 3207.90 as ceramic colours, citing a High Court judgment supporting their classification. The appellant referenced Customs Notification 156/95-C.E. and Chapter Note 4 to Chapter 71 to support their claim. The Tribunal observed that the Commissioner relied on a Tribunal order for classification and emphasized that the prima facie case regarding classification should be considered based on the Tribunal's order.

Exemption Notification Issue:
The Commissioner denied the benefit of exemption Notification 1/93, stating that the appellant used another person's trademark not entitled to the exemption. The appellant argued that the trademark "golden oriole" was legally assigned to them, recognized by trademark authorities, and thus, they should not be denied the exemption. The Tribunal noted that the issue of trademark assignment could be examined in detail during the appeal hearing, rather than at the stay application stage.

Financial Hardship Claim:
The appellant mentioned financial hardship in their affidavit, but the Department argued that no specific details were provided to demonstrate financial distress. The Tribunal found that there was insufficient evidence of financial hardship presented and noted that the amount involved was approximately Rs. 2,34,000. Despite the financial aspect, the Tribunal declined to grant a stay but allowed the appellant 8 weeks to deposit the amount, failing which the appeal would be dismissed without further notice.

In conclusion, the Tribunal considered the arguments regarding classification, exemption Notification, and financial hardship in the stay application. While acknowledging the appellant's contentions, the Tribunal emphasized the need to follow the Tribunal's order for classification determination and deferred detailed examination of trademark assignment issues to the appeal hearing. The Tribunal found insufficient grounds to grant a stay but provided a deadline for the appellant to deposit the amount involved.