TMI Blog2014 (12) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... e interest liability on the duty demand confirmed against them. As regards the liability to confiscation of the goods seized from the premises of M/s. Chemipol and M/s. Electron Industries Ltd., the said goods have been cleared without payment of appropriate duty. Therefore, the goods are correctly liable for confiscation. The question is since the goods have been provisionally released, whether the redemption fine imposed is reasonable or excessive. The redemption fine of ₹ 60,000/- has been imposed on M/s. Chemipol in lieu of confiscation in respect of goods valued at ₹ 2,37,850/- and a fine of ₹ 30,000/- has been imposed on M/s. Electron Industries Ltd. in respect of the goods valued at ₹ 1,18,000/-. The purpose of imposing of redemption fine is to take away the profit margin which is available on goods. There is no evidence on record to show what is the profit margin on the impugned goods. In the absence of any such evidence, normally this Tribunal has been imposing a fine equal to 10% of the value of the goods. Therefore, following the same, in the present case also, we reduce the redemption fine. Since it relates to interpretation of law, we do n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by them and supplied to M/s. Electron Industries Ltd. was sold under the brand name, ELECTRON which was printed on the Carboys containing the chemicals and these goods were cleared availing the small scale exemption. The department was of the view that inasmuch as the brand name did not belong to M/s. Chemipol, M/s. Chemipol was not eligible for the SSI exemption. Accordingly, they seized goods valued at ₹ 2,37,850/- lying at the premises of M/s. Chemipol. Similar search was carried out at the premises of M/s. Electron Industries Ltd. also and goods valued at ₹ 1,18,000/- bearing the brand name ELECTRON were seized from the said premises. Thereafter, a show cause notice was issued to M/s. Chemipol, Authorized Signatory Shri Sajjan Kothari, M/s. Electron Industries Ltd. and its Director Shri Anil Patel, wherein it was proposed to deny the benefit of exemption under Notification No. 9/2002-C.E. on the ground that M/s. Chemipol manufactured and cleared goods bearing the brand name of another and, therefore, the said goods are not eligible for the benefit of aforesaid notification. The notice also proposed imposition of penalty on M/s. Chemipol, Shri Sajjan Kothari, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stries Ltd., the learned Counsel submits that they are only traders and they are not manufacturers. The liability to pay appropriate duty is on M/s. Chemipol. There is nothing on record to show that they have aided or abetted evasion of duty by M/s. Chemipol and, therefore, imposition of penalty on M/s. Electron Industries Ltd. and its Director Shri Anil Patel is clearly not sustainable in law. He further submits that since there is no violation of law, confiscation of goods is also not warranted and consequently, the imposition of redemption fine is also not sustainable. 4. Learned Addl. Commissioner (AR) appearing for the Revenue, on the other hand, strongly refutes the contentions of the learned Counsel for the appellant. He submits that the name ELECTRON printed on carboys in which the goods were supplied is not a house mark. The name has been printed in a particular way. He further submits that the said name is also used by M/s. Electron Industries Ltd. in various documents like letter heads, visiting cards, labels, etc., wherein very same name ELECTRON was printed in the same way as it was printed on the carboys. Therefore, it is clear that the name ELECTRON has a clos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le in law and accordingly, needs to be upheld. 5. We have carefully considered the submissions made by both sides. 5.1 Para 4 of the Notification No. 9/2002, dated 1-3-2002 reads as follows :- 4. The exemption contained in this notification shall not apply to the specified goods bearing a brand name or trade name, whether registered or not, of another person .. As per the explanation to the said para - brand name or trade name mean a brand name or trade name, whether registered or not, that is to say a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person. 5.2 From the definition of brand name as given above, it is clear that the brand name or trade name need not be registered. So long as the said name indicates a connection in the course of trade between the goods and some person using such name it would suffice. The question is whether the name ELECTRON printe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to take away the profit margin which is available on goods. There is no evidence on record to show what is the profit margin on the impugned goods. In the absence of any such evidence, normally this Tribunal has been imposing a fine equal to 10% of the value of the goods. Therefore, following the same, in the present case also, we reduce the redemption fine from ₹ 60,000/- to ₹ 23,785/- and from ₹ 30,000/- to ₹ 11,800/- respectively. 5.3 The next question is whether penalty is imposable on M/s. Chemipol, Shri Sajjan Kothari, M/s. Electron Industries Ltd. and Shri Anil Patel. As regards M/s. Chemipol and its authorized signatory, the issue involved herein relates to interpretation of notification as to whether the name ELECTRON printed on the carboys would satisfy the definition of brand name or trade name or not as defined in law. Since it relates to interpretation of law, we do not find any reason for imposition of penalty. Accordingly, the penalty is set aside on M/s. Chemipol and Shri Sajjan Kothari. As regards the penalty imposed on M/s. Electron Industries Ltd. and Shri Anil Patel, the liability to pay duty is on M/s. Chemipol and not on the buyer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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