9911796707
TMI Blog1999 (10) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, with intent to evade payment of duty appellants had used the said brand name and manufactured and cleared the goods without payment of duty in respect of 27 items. In the annexure to show cause notice, the excisable goods said to have been manufactured as shown is only 10 and the tariff heading is also disclosed in respect of each item. There is narration of detail facts pertaining to clearances for the respective year 1989-90 upto Jan.'94 alongwith the goods pertaining to T.S.R. Co., owning brand name and the manner in which same was transferred to them in terms of High Court of Madras order dated 23-12-1975. The annexures also disclosed that M/s. T.S.R. Co. were manufacturing goods upto 13-4-1989 after obtaining SSI certificate in the premises at Nageswaran Thirumanjana Veedi, Kumbakonam. With effect from 14-4-1989 M/s. T.S.R Co. had entered into an agreement of Take over and Lease with M/s. T.S.R. Co., Home Needs (P) Ltd. and the entire business activities were handed over to M/s. TSR Co., HNPL. The terms of the agreement was also incorporated in the annexure. It was alleged that M/s. T.S.R. Co. had surrendered their SSI certificate and a fresh certificate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ownership of the brand name and the agreement of Take Over etc., were never disclosed to the department. In fact, their family dispute as well as understanding arrived at by the parties, though it had a bearing on Central Excise, were suppressed. In such a situation, the extended period is invokable in demanding duty. 5. Learned Advocate Shri K.R. Natarajan appearing for appellants submits that in the present case, the department was fully aware of the activity of manufacture and use of brand name under the agreement as is very clear from the earlier show cause notice dated 22-12-1990 and also appellants on their accord having filed classification list, taking licence. They had also furnished the agreement of take over which clearly disclosed that the ownership was with T.S.R. Co. Therefore the findings arrived at by the Commissioner that this agreement was never disclosed is factually correct. He submits that there was no intention to evade duty as appellants had been clearly contending that T.S.R. Co. continued to be eligible for benefit of notification and as such appellants were also entitled for the benefit. He further submits that duty computation even for 6 months i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llation of the same. By their agreement they had retained the ownership of the logo and the brand name. The question that arises for our consideration is as to whether despite their having cancelled the SSI certificate and surrendered the licence, they would continue to remain within the ambit of notification so as to accept the claim of the appellants that they are entitled to benefit of notification upto to an extent of Rs. 7.50 lakhs. We notice that this issue is no longer res integra and in the cited case of Shah Machine Tools Pvt. Ltd. by Ld. DR., the issue has already been decided and the Tribunal relied on earlier decision of Thio Pharma supra and opined that person who own the brand name continued to engage himself in manufacturing activity of excisable goods and was within the ambit of notification, only then the other person manufacturing with the said brand name could claim the benefit. Therefore, applying the ratio thereof, we notice that in the present case as M/s. T.S.R. Co. had surrendered their licence SSI certificate, and were not manufacturing the goods, therefore the notification ceased to operate on them and hence appellants cannot seek benefit in terms of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disclosed all the details including furnishing the take over agreement which clearly disclosed that the brand name and the logo continued to be owned by T.S.R. Co. Therefore, it was for the department to have scrutinised these documents and should have brought to the notice of the appellants about ineligibility of the benefit of the notification in time so that appellants could have contested the case or could have complied with the demands raised. In any event of the matter, appellants cannot be charged with the allegation of suppression as department itself had issued a show cause notice on 22-11-1990 wherein they had disclosed to the appellants that they were using the brand name of T.S.R. Co. and that they were not eligible for the benefit. When these facts were known and proceedings had been initiated, therefore absolutely there was no suppression and clandestine removal under Rule 9(2) is totally incorrect and without any sound basis at all. The Commissioner in the extracted para-21 of his order as above has admitted that appellants had filed classification lists and price lists etc. Therefore to come to the conclusion that there was suppression without bringing about the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich of the various commissions or omissions stated in the proviso is committed to extend the period from six months to 5 years. Unless the assessee is put to notice, the assessee would have no opportunity to meet the case of the department. The defaults enumerated in the proviso to the said sub-section are more than one and if the excise department places reliance on the proviso it must be specifically stated in the show cause notice which is the allegation against the assessee falling within the four corners of the said proviso. In the instant case that having not been specifically stated the Additional Collector was not justified in inferring (merely because the assessee had failed to make a declaration in regard to waste or by-product) an intention to evade the payment of duty. The Additional Collector did not specifically deal with this contention of the assessee but merely drew the inference that since the classification list did not make any mention in regard to this waste product it could be inferred that the assessee had apparently tried to evade the payment of excise duty. 11. The above observations of the Hon ble Apex Court would apply squarely to the facts of the pre ..... 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