TMI Blog2013 (11) TMI 1418X X X X Extracts X X X X X X X X Extracts X X X X ..... IGH COURT] and on CBEC Circular No. 52/52/94-CX, dt.01.09.1994 - when the brand name does not belong to any person, then the manufacturers using such brand name are eligible for exemption under Notification No.1/93. Time barred demand – Held that:- The appellants filed suitable declarations under Rule 174 of the Central Excise Rules and Notification No.1/93-CE, dt.28.02.1993 - It cannot be held that there was any suppression on the part of the appellants with intention to evade duty - The reason given by the first appellate authority that appellants did not declare the use of brand name ‘AVON’ in the declaration filed with the Department amounts to suppression with intention to evade duty, is not correct because the appellants can be und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment of Hon'ble High Court of Delhi in the case of CCE Vs Minimax Industries -2011 (269) ELT 166 (Del.) and judgment of Delhi Bench of CESTAT in the case of Elex Knitting Machinery Co. Vs CCE Chandigarh-I -2003 (158) ELT 499 (Tri-Del) which has also been confirmed by Hon'ble High Court of Punjab Haryana and Hon ble Supreme Court as reported at 2010 (258) ELT A48 (P H) and 2010 (283) ELT A18 (SC) respectively. It was further argued that this issue has already been clarified by CBEC under Circular No.52/52/94-CX, dt.01.09.1994 conveying that if the brand name does not belong to any person, then such manufacturers using that brand name are eligible to small scale exemption. It was submitted that in the present appeal, brand name AVON b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame. In Para 14 and 15 of the judgment, following was held by Hon'ble High Court of Delhi. 14. As noted above, this partnership firm and MEI are being run by the family members. Two brothers are partners in the said partnership firm while the MEI is the sole proprietorship concern of third brother. Both of them have been using the mark Minimax for the last number of years, though, the use by MEI may be prior in point of time. However, even that is the history. Initially, all the three brothers were doing the business together, however, later on these two brothers of partnership firm started separate business in the same line using same name i.e. Minimax . In these circumstances, it cannot be said that the partnership firm started using ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly said to be running another firm of M/s. Elex Knitting Machinery, as single person cannot constitute any firm under the law. Therefore, being already co-owner of the brand name, he was competent to use the same. 7. In light of the discussion made above, the benefit of SSI exemption Notification No. 1/93-C.E., dated 28-2-93 could not be legally denied to the Appellants. Therefore, the impugned Order of the Commissioner (Appeals) is set aside. The appeal of the Appellants is allowed with consequential relief, if any, permissible under the law. 8. Reliance was also placed by the appellants on CBEC Circular No. 52/52/94-CX, dt.01.09.1994, wherein it has been clarified that when the brand name does not belong to any person, then the manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplanation IX in the said notification. Admittedly, the notification, dated 4th/11th May, 1994 is clarificatory in nature and the purpose could have been achieved by issuing a clarification to the field formations". 4. From the above mentioned opinion of the Law Ministry, it is clear that if a brand name is not owned by any particular person, the use thereof will not deprive a unit of the benefit of the small scale exemption scheme. This applies not only to locks but to all other goods specified in Notification No. 1/93-C.E. 9. It is observed from the facts of the present case that the brand name AVON is being used by the partnership concerns of the same family. It has not been established by the investigation that the brand name AVO ..... X X X X Extracts X X X X X X X X Extracts X X X X
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