TMI Blog2010 (5) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... oner Belgaum on 17th May 2006. By the stay order, the Joint Commissioner had confirmed the demand of Rs. 17,01,069/- being the duty short paid while availing exemption benefits under Notification No. 9/2003-C.E., dated 1st March 2003, along with demand of interest and imposition of penalty of equal amount of duty. 3. The respondents are manufacturers of vacuum pumps under the brand name 'Woowac' which belongs to M/s. Woosung Vacuum Company Pvt. Ltd., South Korea. The respondents availed benefit of Notification No. 9/2003 dated 1st March 2003 along with cenvat credit facility and paid duty at concessional rate of 9.6% in relation to the product having annual turn over of less than Rs. 1,00,00,000/-. A show cause notice came to be issued on 7th March 2006 alleging wrongful availment under benefit of Notification No. 9/2003 and consequential short payment of duty by 6.4% on the clearance value of their product and therefore requiring them to show cause as to why the excise duty to the tune of Rs. 17,01,069/- along with interest thereon and the penalty should not be recovered from them. The proceedings were contested by the respondents without any success and consequently the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod for which the respondents had the agreement with the foreign collaborator had expired and that therefore the respondents were using the brand name of others for vacuum pumps manufactured by them and hence were not eligible to claim for exemption under the said notification. The contention of the respondents that the vacuum pumps manufactured by them were of different type in comparison to those which were manufactured by their foreign collaborators was not acceptable, as the agreement between the parties itself proved to the contrary. The respondents had also raised the point of bar of limitation and while rejecting the said defence, the adjudicating authority held that the contention of the assessees that the activity of manufacturing pumps and the fact of collaboration was known to the department, could not be accepted on account of the fact that they had not placed anything on record to show that the department had knowledge of use of the brand name of their collaborator and therefore, the department was justified in invoking extended period of limitation. 7. The Commissioner (Appeals) did not interfere in the findings arrived at by the adjudicating authority on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... photocopies of these at Annexure I II of this order. At annexure I is the product manufactured by the appellant, namely Oil sealed rotary valve high vaccum pump. The photocopy shows the styling of word 'Woovac' is very different from 'Woovac' used on the product of Korean party shown at Annexure II. The adjudicating authority has not brought any evidence on record to show that the name and logo used by the appellants also belong to the Korean party or it is the same name and logo used by the Korean party. Here is therefore no positive evidence supporting the allegation that the appellants have actually used the brand name belonging to another person. The conclusions reached by adjudicating authority are merely based on the wordings of agreement without any factual substantiation. I hold that mischief of para 4 of Not. No. 9/2003-C.E. is attracted only if the brand name of another person is so used to create an impression that product is of the brand names owner on a connection exists between the brand name owner and the product. But when brand name is differently styled as it is clearly borne out by the name plate which shows that product belongs to the appellants and is manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er inquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against. Sub-section 4 of Section 35A provides that the order of the Commissioner (Appeals) disposing the appeal shall be in writing and shall state the points for determination, the decision therein and reasons for the decision. 15. If we read the above referred provisions of law comprised under Section 35A of the Said Act, it would be abundantly clear that Commissioner (Appeals) has to first ascertain all the points which are required to be determined in the appeal. In order to ascertain the points of determination, the Commissioner (Appeals) has necessarily to analyze the order which is sought to be challenged by referring to the materials which were available before the adjudicating authority at the time and based on which the order challenged was passed. The Commissioner (Appeals) cannot test the findings arrived at by the adjudicating authority by taking into consideration additional materials which were not available before the adjudicating authority as it will not only amount to injustice to the adjudicating authority but a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s manufactured by them on the basis of their agreement with the foreign collaborator and that the said brand name belonged to the foreign collaborator. When there was a clear admission, it is really surprising that the Commissioner (appeals) should arrive at a finding that there was no positive evidence on record in support of allegation that the respondents were using the brand name of another person. It is elementary rule of evidence that when a fact in dispute is admitted, question of requiring the party to produce further evidence in support of such fact cannot arise. It was a clear case of admission relating to the use of the brand name belonging to another person for the product manufactured by the respondents and the same was apparent from the defence raised by the respondents in their reply to the show cause notice. 18. The learned DR has brought to our notice the statement of MD of the respondents who in his statement had clearly stated thus - "Indo Woosung Vaccum Company Pvt. Ltd., is entitled to use the brand name of Woosung Vaccum Company Ltd., South Korea for the pumps manufactured by it. However the brand name 'Woovac' which is used by the Indo Woosung Vaccu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cified goods bearing a brand name or trade name, whether registered or not, of another person, except in the following cases, namely :- (a) where specified goods, being in the nature of components or parts of any machinery or equipment or appliances, are cleared for use as original equipment in the manufacture of the said machinery or equipment or appliances by following the procedure laid down in the Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001 : Provided that manufacturers, whose aggregate value of clearances for home consumption of such specified goods for use as original equipment does not exceed rupees one hundred lakhs in the financial year 2002-2003, as calculated in the manner specified in paragraph 1, may submit a declaration regarding such use instead of following the procedure laid down in the said Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001; (b) where the goods bear a brand name or trade name of - (i) the Khadi and Village Industries Commission; or (ii) a State Khadi and Village Industry Board; or (iii) the ..... 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