9911796707
TMI Blog2012 (6) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... cuits Limited, Sri Lanka. The appellants are a 100% subsidiary of M/s. Ritzbury Lanka (P) Limited, Sri Lanka, who in turn is a 100% subsidiary of M/s. Ceylon Biscuits Limited, Sri Lanka. 3. The Department s allegation against the appellants was based on the decision of the Hon ble Tribunal in the case of Namtech Systems Ltd. Vs. CCE 2000 (115) ELT 238, wherein it was held that if the specified goods are affixed with the brand name of a foreign person, or a trader who is not a manufacturer, the benefit of SSI exemption would not be available. The Department also relied on the decision of the Hon ble Supreme Court in the case of Indian Management Advisors and Leasing (P) Ltd. Vs. CCE 2002 (143) ELT 241 (SC), wherein it was held that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd name of another person, he shall be disentitled to claim the benefit of SSI exemption. 6. It has been argued on behalf of the appellants that they have not used the brand name of any other person, that the impugned brand names were owned by the 100% holding companies of the appellant-company and that even though holding companies and subsidiary companies are separate entities, in the eyes of law, they shall not be considered completely different from one another. In this case, the holding companies in Sri Lanka have assigned the exclusive right of using their respective brand names to the appellants vide their letter dated 15.8.1997 and the appellants have applied for registration vide their application dated 15.7.2002. It has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no grievance. The findings recorded by the Tribunal on point No. 1 is, therefore, affirmed. 2. Point No. 2 has been decided by the? Tribunal against the revenue relying upon a judgment of the Single Bench of the Calcutta High Court in the case of ESBI Transmission Pvt. Ltd. v. CCE - 1997 (91) E.L.T. 47 (Cal.) which was upheld by a Division Bench of that Court in CCE v. ESBI Transmission Pvt. Ltd. - 1997 (91) E.L.T. 292. 3. Admittedly, against the judgment of the Calcutta High Court the revenue did not file any appeal. The same has become final. 4. Since, the revenue did not challenge the judgment of the Calcutta High Court in the afore-mentioned case, the revenue cannot be permitted to re-agitate the pint which is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I exemption. The learned DR also argues that small scale exemption is meant for small producers and not for subsidiaries of foreign companies. 9. We have considered arguments from both sides, the case records as well as the cited case laws. We find that the period in question in this case is November 1999 to June 2002. The duty involved is Rs.18,81,084/- and the show-cause notice has been issued on 10.1.2003. The appellants have contended that the assignment of the brand name was done by a letter dated 15.8.1997 but the application for registration was done only on 15.7.2002 after the jurisdictional officers started enquiring about the affixation of brand names owned by others vide letter dated 5.11.2001. We find that there are two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l that affixation of a brand name of a foreign company otherwise registered in the name of the Indian company would not be a bar to availing small scale exemption. 11. We find that the Hon ble Supreme Court s decision in the cases of Primella Sanitary Products (supra) and Convertech Equipment (supra) have been rendered by the Benches comprising of three Hon ble Judges, hence, following the ratio of these decisions, we hold that the appellant-assessee herein is entitled to the small scale exemption. Hence, we set aside the impugned Order-in-Appeal and restore the Order-in-Original. Consequently, the assessee s appeal is allowed and the Department s appeal for enhancement of penalty is dismissed. (Operative portion of the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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