TMI Blog2000 (9) TMI 698X X X X Extracts X X X X X X X X Extracts X X X X ..... said Notification dated 1-3-1986 (as amended), and that they had deliberately concealed the fact of manufacturing branded goods to avail the benefit of payment of concessional rate of central excise duty. Duty of Rs. 47,82,181/- was demanded for the period July, 1988 to March, 1991 invoking the extended period of limitation. Penal provisions were also invoked. 2. The matter was adjudicated by the Commissioner of Central Excise, Delhi-II, who under his order-in-original dated 27-11-1997 framed the following three issues for his consideration :- (1) The Department has alleged that the party manufactured two categories of lights - one those made of glass and the second, lights other than those made of glass. They however, irregularly claimed exemption under Notification No. 96/86-C.E., dated 10-2-1986 and Notification No. 80/90-C.E., dated 20-2-1990 in respect of the lamps/lights made of glass which they cleared in the guise of lamps/lights other than made of glass. (2) the party was alleged to have found affixing the brand name of lovelites on the lamps and lights cleared by them and that they were not entitled for exemption under Notification No. 175/86-C.E., dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants. Total duty of Rs. 19,46,981/- was confirmed and a penalty of Rs. 20,00,000/- was imposed. 3. The matter was heard on 8-9-2000 when Shri J.P. Kaushik, Advocate made the following submissions : (i) No brand name was affixed on the goods in question. The brand name was only mentioned on the tags attached to the packages containing the said goods. It was only from March, 1991 (after the period in dispute) that the brand name was used on few varieties of the goods. Prior to that only tags were used on the packing boxes and not on the goods. Such mentioning of the name on the tags will not be hit by the relevant provisions of the Small Scale Exemption Scheme. He relied upon the Tribunal s decision in the case of Srinisan Cables (Pvt.) Ltd. v. Commissioner of Central Excise, Hyderabad - 1999 (32) RLT 418 (CEGAT) wherein it was held that when the customer s name was written on a tag attached to the goods, and no brand name was affixed on the goods, the benefit of Notification No. 175/86-C.E., dated 1-3-1986 was available. (ii) The brand name belonged to the family of which the appellants was the member. Under a Deed of Assignment the brand name has been assi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een made and the said show cause notice had been withdrawn by the adjudicating authority. It was also submitted that when the demand was not sustainable, being time barred, no penalty could be imposed. He referred to the Tribunal s decision in the case of National Organic Chemical Industries Ltd. v. CCE, Mumbai - 2000 (38) RLT 862 (CEGAT). (vi) The allegations of suppression of production and clandestine removal has been made only on the basis of differences in value. It is not because of any difference in quantity. The appellants have duly explained the position and he referred to the reply at page 18 (Annexure B) of the paperbook. (vii) In-valuation, installation charges had also been included and no adjustment of duty had been provided. In reply, Dr. Ravinder Babu, JDR submitted that the appellants were not the owner of the brand name and that the Deed of Assignment could not make them the owner of the brand name, which belonged to other in-eligible persons, even when they were the members of the same family. With regard to the charge of suppression, he referred to the impugned order-in-original, and relied upon the grounds taken by the adjudicating authority. It was hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p Shade Company (MU), Faridabad have made a wrong declaration on the classification list filed with the department that they are using their own brand name Kapoor Lamp Shade on packing boxes as they were found affixing the said goods with the brand name of lovelites . The noticees had replied to this show cause notice on 24-12-1991 in which, among other grounds, they stated that there was no mis-declaration and further made a reference to their earlier reply dated 5-8-1991 to the previous show cause notice 31-5-1991 issued by the Asstt. Collector of Central Excise, on the same subject. This earlier show cause notice dated 3-9-1991 was adjudicated by the Addl. Collector of Central Excise, Faridabad under his order-in-original dated 27-5-1992 wherein, he held that Mrs. Shankuntala Kapoor, who was the sole proprietor of M/s. Kapoor was also a legal owner of the brand name Lovelites . As she was the joint owner of the said brand name, the appellants were found entitled for exemption under Notification No. 175/86-C.E., dated 1-3-1986. The proceedings initiated against M/s. Kapoor vide the aforesaid show cause notice dated 3-9-1991 was withdrawn. 7. It was after more than one y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he charge of suppression that the appellants had declared in the relevant classification lists that they were manufacturing lamps and lighting fittings made of glass (which it was alleged that they were clearing in the guise of lamps and lighting fittings without glass) had been finally dropped by the adjudicating authority and it appears that this aspect had not been further pursued by the Department. It is also not disputed that the brand name was indicated on the tags only in so far as the goods seized were concerned. 11. In the facts and circumstances of the present case, taking into account all the relevant material on record, we do not agree with the view taken by the ld. Commissioner of Central Excise, Delhi-II, the adjudicating authority, that there was suppression of facts on the part of the appellants to justify the demand for the extended period of limitation. 12. While there was no bar for issuing a show cause notice invoking the extended period of limitation, after a notice within the normal period had already been issued, each notice will stand or fall on its own merits. Justification for invoking the extended period of limitation had to be found in such notice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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