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TMI Blog2013 (8) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... nued this practice of embossing on the jewellery of the name "Tanishq" with effect from 01.07.2006, which they informed to the department vide their letter dated 15.06.2006. Two show-cause notices dated 03.03.2009 and 30.11.2009 were issued for the period from Sept.'05 to 06.07.2009 proposing demand of duty of Rs.63,91,13,363/- along with interest and penalty on the ground that they are not eligible for exemption under Notification No.5/2006-CE, dated 01.03.2006 for jewellery cleared embossed with the alphabet 'I' or 'Q', which constitute the brand name. The learned Commissioner confirmed the demand of duty and imposed penalty along with interest. 2. The learned senior counsel for the applicant raised a preliminary issue against the confir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification 5/2006-CE (S.No.26). This fact was known to the department. Hence, the demand of duty is partly barred by limitation. It is also stated that there is no suppression of facts on the part of the applicant. He submits that the Hon'ble High Court in the case of B.H.E.L. Ancillary Association Vs Collector of Central Excise reported in 1990 (49) E.L.T. 33 (Mad.) held that the markings or inscriptions indelibly or cumulatively do not constitute a name or a mark used by the assessee in relation to the components manufactured by them. 3. The learned authorised representative for the Revenue submits that prior to exemption notification, they were using the brand name "Tanishq" on the jewellery. After imposition of such levy and introducti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we find some force in the submissions of the learned senior counsel. The main contention of the learned senior counsel is that the alphabet 'I' or 'Q' are not the trade mark of the applicant and, therefore, demand of duty is not sustainable. For the proper appreciation, the relevant portion of Notification No.5/2006-CE, dated 01.03.2005 is reproduced herein below:- S. No. Chapter or heading or sub-heading or tariff item Description of goods Rate under the First Schedule Rate under the Second Schedule (i) (ii) (iii) (iv) (v) 26. 7113 Article of jewellery on which brand name or trade name is indelibly affixed or embossed on the articles of jewellery itself 2% --- 4.2 Board's Circular No.B-1/1/2005-TRU, dated 04.03.2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceived from a particular goldsmith, etc. This is not branded jewellery and will not attract the tax. (ii) "ABC jewellers", when it sells articles of jewellery to customers, puts a distinctive sign/mark/initials etc. on the jewellery. This is again for the purpose of identification so that when the jewellery is returned to ABC jewellers, they will recognize the jewellery as their own. ABC jewellers does not sell the jewellery under a brand name. This again is not branded jewellery, and will not attract the tax. (iii) "ABC jewellers" advertises and sells its products under the brand "Star", It also puts the same brand name or an abbreviation thereof or a mark which has a connection with such brand name on the arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customers such goods were sold through "Gold Plus" shops from 13.09.2005. It has further been observed that the applicant discontinued the use of logo of the brand "Tanishq" on all the jewellery manufactured by them, though the jewellery was advertised and marketed under the brand "Tanishq." It has also been observed that the levy of excise duty on the jewellery resulted in discontinuing use of brand "Tanishq" on the jewellery, which was established by them since 1994. 4.4 We find that the applicant stopped the embossing of the brand "Tanishq" from 01.07.2006. On a perusal of the notification, the words "affixed or embossed on the articles of jewellery" itself make it clear that duty liability arises, the brand name or trade name would be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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