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TMI Blog2003 (8) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... g a machine which enables the end fittings to be permanently attached to the hose. (b) A substantial part of the hose assembly is cleared by the appellants to the original equipment manufacturers like Bharath Earth Movers Ltd., MICO, M/s. Hindustan Motors Ltd. These manufacturers manufacture items like Earth Moving equipment, Hydraulic float power system etc. the small portion of the hose assembly, is cleared to other customers, which are used as parts of equipments. (c) The hose, as procured, in running length has the brand name or logo of the supplier. For instance the goods imported by the appellant from M/s. Dunlop Hydraulic Hose Ltd. have the logo of the said company on the rubber hose. (d) The appellants have been selling the hose assembly under the brand name of Uniflex. The appellants were pasting a sticker showing the brand name Uniflex on all the hose assemblies. The sticker also was bearing the words "Licence : Dunlop Hiflex" with a logo. 3. (a) They were issued with show cause notices proposing to demand differential duty by denying the exemption, on the ground that the appellants we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent from the goods supplied by the foreign supplier the question of using a brand name of foreign supplier in respect of goods manufactured by the appellants does not arise and accordingly, benefit of Small Scale Exemption cannot be denied.' (d) In the de novo proceedings, the Commissioner re-adjudicated the case, initiated by the Show Cause Notices by observing as follows :- "12. In addition to the above, three more SCNs in continuation of the period involved in the above SCN for the period 1-4-1996 to 31-3-1997 involving a total duty of Rs. 6,24,941/- issued by the Superintendent of Central Excise, Mahadevapura Range, Bangalore which were also confirmed together by the Assistant Commissioner of Central Excise, Bangalore IV Division, Bangalore vide his Order No. 68(a)/98, dtd. 15-6-1998 (C.No.V/40/15/131/97) and upheld by Hon'ble Commissioner (Appeals) on being appealed against by the assessee and further appealed to the Hon'ble Tribunal, who vide its Final Order No. 928/2001 has remanded the matter to the concerned adjudicating authority to decide the issue afresh and to give clear finding on factual position. 13. On the request of the assessee vid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r final products such as Earth moving equipments, Central lubricating system, Hydraulic Power packs, Hydraulic fluid power system etc., Hydraulic Hose Assemblies mainly consists of Hydraulic Hoses, (of different sizes/dimensions/types/ lengths), right endfittings and left endfittings. In the endfittings, the buyers part number as indicated in the purchase order are engraved together with our company's brand name - UF-UNIFLEX. Engraving of part number is necessary to identify the hose assemblies at customers end for correctly using these hose assemblies for a particular finished goods. Each hose assembly manufactured by us is assigned a part number code by us. Same is also reflected in our invoices. The first alphabet used in the part number represents the make of the hydraulic hose such as - D for Dunlop, A for Alfagomma, W for Markwel, and L for Superseal etc. Subsequent codes indicate the length, the size, right endfittings and left endfittings etc." (b) The markings on the Hose Assembly are : "According to Mr. P. Duraiswamy, Assistant Manager, FGS, Yuken India Ltd., (as per his statement, dtd. 18-11-95) covering the supplier of our hose assembly. "The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... field Road, Bangalore, have procured hose assemblies from M/s. UFL and it was found that the hose assemblies were packed in polythene cover bearing the printing "UNIFLEX High Pressure Hoses Licence Dunlop Hiflex, England" and a sticker was affixed on the hose assembly bearing the details "UNIFLEX Licence Dunlop HIFLEX : UNIVERSAL FLEXIBLE PVT LTD., BANGALORE - 560 048, PHONE No. 510893" and on the left corner of the sticker, it is mentioned as "UF" and on the right hand side corner of the sticker a monogram is affixed and below the monogram, it is written as "HIFLEX". (ii) On verification of the stock of hose assemblies supplied by M/s. UFL to M/s. Yuken India Ltd., it was found the hose assembly was bearing a sticker with the description "UNIFLEX Licence Dunlop HIFLEX Universal Flexibles (P) Ltd., Bangalore - 560 048. Phone: 510878" and a monogram on the righthand side. Similar verifications were conducted at M/s. BEML, Mysore, M/s. Bhaskar Dynamics, Bangalore, M/s. Lincoln Helios (India) Ltd., Bangalore and M/s. MICO, Bangalore who have procured 'Hose Assemblies' from M/s. UFL and it was found that the hose assemblies were affixed with sticker "Unif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as such or it is recognized as a bare hose in the market. The selling of the component of hose assembly like bare hose duly cut into the required size with skiving on both ends and endfitting as such are the best example or ingredient to hold that hose assembly itself is a product being sold in the market as such which require replacement of its worn out part through these supplies of the parts of the hose assembly. Therefore, the bare hose in running length and the conversion of the bare hose into the hose assembly brings out a distinct identifiable product having different use and marketability as such. The bare hose cannot be used unless it is processed as being processed by the assessee, as a component part in any of the machines....." "...Same is the case of bare hose and the product hose assembly made out of the hose. Both are different identifiable, separate useable and marketable products. One can understand that new product has not come into existence by the process of manufacture if the only bare hose can be put to use as a replacement of the hose assembly. The bare hose cannot be used unless it is fitted with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rstanding of provision of Para 7 of Notfn. 175/86-CE. The Larger Bench further held that to attract the mischief of Notfn. 1/93-CE or 175/86-CE, the specified goods should have been cleared under the Brand Name on identical goods. Since the Board's instructions were binding on the Commissioner and Revenue cannot plead contrary to that and the Larger Bench decision is binding on this Bench of the Tribunal, in absence of any material that the alleged Brand Names, Logos, etc., of U.K. firm were used also on 'Hose Assembly', denial of the benefit of the notification as granted and availed on Hose Assembly by the appellants could not be upheld. (f) (i) The case of the Department, in the show cause notices was that the appellants were using a sticker on the hose assembly with the brand name "Dunlop Hiflex" and on facts they are found to have marked many more things including prominently their own name and brand. (ii) On being pointed out that the words "Dunlop Hiflex" was not the brand name of Dunlop, England, and that the appellants were not using the brand name of Dunlop, England, the Commissioner in the impugned order finds and agrees that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... like the covering letter for the declaration for availing Modvat, duty paying documents like invoices, the covering letter for the RT 12 returns contain the logo and the words Hiflex. (ii) The only case set up in the show cause notice for invoking the longer period of limitation is that the appellants had misdeclared/suppressed the fact of using the brand name in their classification list. (iii) As far as the classification list is concerned, neither Rule 173(b) of Central Excise Rules nor the form of Classification list requires indication of the brand name. Infact this position has been noted by the Tribunal in a number of cases, the recent one being SPM Instrument India (P) Ltd. v. CCE, Hyderabad reported in 2003 (152) E.L.T. 115. (iv) As far as the goods are concerned, the sticker that was paste on the endfittings contained both the brand name Uniflex and the so called brand name of the foreign company along with notations of part numbers of the buyers. The use of one's own brand name need not be indicated to the Department. (v) As far as the indication of the brand name of the foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; Byco International & Ors. v. CCE, New Delhi - 1993 (49) ECR 126 (b) Jaison Syntex Industries v. CCE, Hyderabad - 1997 (22) RLT 811 (CEGAT) (c) Durgapur Chemicals v. CCE, Bolpur - 2001 (95) ECR 221 (d) Lubri-chem Industries Ltd. v. CCE, Bombay - 1994 (73) E.L.T. 257 (S.C.) (e) Cosmic Dye Chemical v. CCE, Bombay - 1995 (75) E.L.T. 721 (S.C.) (f) Jaiprakash Industries Ltd. v. CCE, Chandigarh - 2002 (146) E.L.T. 481 (S.C.) (g) Intervalve (India) Pvt. Ltd. v. CCE & C, Pune - 2001 (133) E.L.T. 148 (T) = 2001 (97) ECR 433. There is thus reason to grant benefit of bar of limitation in the facts of this case. (h) Without prejudice to the above, the appellants submit that the goods in question being in the nature of components of original equipment are never traded by them with a help Brand Names. The orders are placed by the purchasers by referring to the part number and designs and goods are sold/despatched by using the part ..... X X X X Extracts X X X X X X X X Extracts X X X X
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