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TMI Blog2008 (6) TMI 580X X X X Extracts X X X X X X X X Extracts X X X X ..... ssifiable, under Chapter 2 of the Tariff attracting nil rate of duty or under Chapter 16 of the Central Excise Tariff and sold in unit containers bearing a brand name attracting 16% duty under sub-heading 1601.10. Prior to 7-6-2000 the products were bearing the name "COSTA's" along with five pointed star mark which has been considered as brand name by the Revenue. The respondents were issued six show cause notices proposing to classify the products under Chapter 1601.10 and seeking to recover duty of various amounts along with proposal for imposition of penalty and recovery of interest. Show cause notice dated 18-5-2001 for the period 2-6-1998 to 30-9-1999 and dated 2-7-2001 for the period 1-4-2000 to 31-3-2001 were adjudicated by the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and therefore it cannot be considered as brand name and accordingly upheld the order of Commissioner (Appeals) on this count. 2. In the remand proceedings the Commissioner vide his impugned order decided the matter in favour of the respondents by holding that the goods were classifiable under Chapter 1601.90 and attracting nil rate of duty. The Commissioner in his order has observed that the issue of brand name was not required to be dealt with by him as CESTAT in its remand proceedings has held that the same cannot be considered as brand name but bearing only a House Mark and all that he was required to do was to determine the correct classification and thereafter demand duty, if any. 3. Revenue has come up in appeal against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal in its judgment dated 28-5-2004 relied entirely upon the Apex Court judgment in the case of Astra Pharmaceuticals Ltd., CESTAT order was patently erroneous and Commissioner has erred by following the ratio of the Tribunal's order in holding that the appellant's products were unbranded. 4. Ld. Advocate for the respondents submitted that the CESTAT remand order dated 28-5-2004 applies only for the period upto 7-6-2000 as after 7-6-2000 they have stopped using the name COSTA's along with star and the products only indicates the name of the manufacturer which is a statutory requirement. It was submitted that the remand by CESTAT was confined only to determine the correct classification between Chapter 2 as claimed by the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence was also invited to the Allahabad High Court decision in the case of Geep Industrial Syndicate Ltd. - 1990 (48) E.L.T. 3 (All.) wherein Commissioner (Appeals) allowed the deduction of Post Manufacturing Expenses and remanded the matter back to Asst. Commissioner. Hon'ble Supreme Court in Bombay Tyre International Ltd. case took a different view on the deductibility of PME. In the remand proceedings AC sought to rely upon the law laid down by the Bombay Tyre International Ltd. Hon'ble High Court held that the Asst. Commissioner is bound by the remand order of the Commissioner (Appeals). It was submitted that this decision squarely covers the present issue. Reference was also invited to the Supreme Court decision in the case of Mafatlal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the products are themselves identified as either, say, "Sandwich fillers", ""Ham", "Salami" as the polythene bags indicate. The word "COSTA's", involving the usage of a punctuation mark "an apostrophe" and the letter "s" is only any indication that the product is manufactured by Costa & Co. Pvt. Ltd. The said word & and the star sign cannot be connoted as a "brand name" within the realm of the Chapter note 2 to Chapter 16 of CETA '85, 'COSTA V which is a word, is not product specific and is not being used in relation to a 'product' so as to identify that product, but it is only used as a 'house mark'. As aforesaid, the products are identified by the name of the product like Salami, Ham, etc. As such, they cannot be termed "goods bearing a b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd classified by involving Chapter 2 of Chapter 16. The orders of CCE (Appeals) are therefore required to be confirmed as regards the applicability of the mark COSTA. Further para (g) read as under :- Since the classification of the products under Chapter 2 or and Chapter 16 is required to be re-determined, in light of the findings herein, the matters are required to be remitted back to the original authority to re-determine the classification and thereafter work out the duty demands, if any. The issue of penalty kept open and be re-determined in view of the quantum of demands, if any, after hearing the assessee." 7. From the above it is very clear that the remand proceeding were limited to redetermine the classification and thereaf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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