TMI Blog1999 (2) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... erprises, respectively. A duty of Rs. 37,146.13 was also demanded from M/s. Fairdeal Enterprises in terms of the said Order dated 31-3-1992. 3. As the issue involved in all the four appeals is common, the same are being disposed of by this common Order. 4. Briefly stated the facts of the cases in Appeal Nos. E-262/92 E-3455/92 are as under :- 4.1 The appellant firm, M/s. Fairdeal Enterprises is a partnership concern engaged in the manufacture of automobile rubber hoses classifiable under Heading: 4009.92. Duty against them has been confirmed for the period from 1-10-1987 to 25-10-1990, by denying them the benefit of Notification No. l75/86-C.E., dated 1-3-1986, as amended by Notification No. 223/87-C.E., dated 22-9-1987, on the ground that they were affixing brand-name of another traders on the said goods. The appellant firm, M/s. Janta Rubber Distributors is one of the traders whose brand name was being affixed on the goods in question by the manufacturers, M/s. Fairdeal Enterprises and hence the penalty upon them. 4.2 Vide another impugned Order-in-Original No. CPO (Ch. 87)-Collr-43/92, dated 31-3-1992, though a demand of duty, in the similar circumstances, had been co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 175/86 would be attracted only if goods were affixed with the brand name of another manufacturer (and not of a trader) and there was scope for doubt as the legal position was not clear during the relevant period and the interpretation was crystallized only with the order of the Tribunal in Thio Pharmas case In the light of this background, non-declaration that the goods manufactured by them bore the brand name of M/s. Bedi Industrial Corporation non application for L-4 licence non-filing classification lists and clearance without payment of duty Pales (sic) into insignificance. The judgment of the Hon ble Supreme Court in the case of Padmini Products v. Collector of Central Excise [1989 (43) E.L.T 195 - 1989 (25) ECR 289 (S.C.) = ECR C 1507 S.C.] wherein the extended period of 5 years was held to be inapplicable for mere failure or negligence of the manufacture to take out licence or pay duty when there was scope for doubt that goods were not dutiable is relevant in this regard in that case the dutiability of goods was in doubt due to Trade Notices, while is the present appeal, there was bona fide belief that disclosure in declaration of use of brand name of trader was not req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ADHWA) Member (J) 9. [Contra per : P.C. Jain, Member (J)]. - I have carefully perused the judgment proposed by my ld. Sister, Mrs. Archana Wadhwa, Judicial Member. But I regret, with respect, to disagree to the views expressed therein on the question of limitation. 10. Reliance has been placed on the following two judgments :- (i) Byco International Others v. C.C.E. [1993 (49) ECR 126 para 4], (ii) Jaison Syntex Industries v. C.C.E., Hydrabad [1997 (22) RLT 811 (CEGAT)]. 11. So far as the second judgment is concerned, it merely follows the first one i.e. Byco International (supra). This judgment of Byco holds, as per para 4 of the said report and extracted in the ld. Judicial Member s proposed judgment that the appellants had a bona fide belief that affixing a brand name of a trader did not attract the provisions of para 7 of Notification 175/86-C.E. This finding of the Tribunal s Bench in Byco was based on plea of the Byco International that they were under a bona fide belief that the embargo in para 7 of Notification 175/86 would be attracted only if goods were affixed with the brand name of another manufacturer (and not of a trader) and there was scope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellants believing that the goods came within purview of the concept of handicrafts and as such were exempt. If there was scope for such a belief or opinion, then failure either to take out a license or to pay duty on that belief, when there was no contrary evidence that the producer or the manufacturer knew that these were excisable or required to be licensed, would not attract the penal provisions of Section 11A of the Act. (Emphasis supplied by me) There is absolutely no material in the present cases to generate a bona fide belief in the minds of the appellants during the relevant period. Such a plea, now taken, is just an afterthought consequent to difference of opinion between two Members of this Tribunal in Thio Pharma at a much later date. Strictly speaking, therefore, Revenue is not required to produce any evidence regarding the mens rea of the appellants in not making a declaration or taking out a license. 12.5 Nevertheless, ld. JDR has pointed out that there is circumstancial evidence against the appellant. The manufacturers - appellant did not at all mention about affixation of brand names of its trader - customers in its declaration un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings the Collector held the charges as established and confirmed the demands and also imposed penalties on the manufacturers and the trader buyers. 16. The ld. Member (Judicial) has held that the charge of suppression could not stand since at the material time there was a bona fide belief in the minds of the assessees that the prohibition imported vide para 7 into the Notification No. 176/87 would not apply where the brand name was owned by a trader. In holding so she has placed reliance on the judgment of the Tribunal in the case of Jaison Syntex cited (supra). 17. Ld. DR submitted that the facts of the present case could be distinguished from the facts of the cited case. I have compared the facts in the cited case with the facts in the present case. In the cited case the Tribunal had observed that the appellant had clearly mentioned in the reply to the show cause notice that they were under the bona fide belief that the brand name of a trader would not bring the appellants within the mischief of para 7 of Notification No. 175/86. I find that in both adjudication Orders the ld. Collector had clearly mentioned the submission of the assessees in reply to the show cause noti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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