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2015 (10) TMI 369 - CESTAT NEW DELHI

2015 (10) TMI 369 - CESTAT NEW DELHI - 2016 (331) E.L.T. 113 (Tri. - Del.) - Deemed manufacturing - SSI Exemption - assessee put their brand name "The Heels" and also MRP - trading in shoes - purchasing of footwears in unit containers bearing brand name like Ben Sharman, Hitz, etc.. The shoes are received in unit containers with brand name declared on the containers but without any MRP. According to the department, in respect of these footwear, the respondent put their MRP sticker on the contain .....

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ense that the statutory certificate of the ownership of the brand name of the person who had been alleged to be the owner of the brand names have not been produced by the Revenue, in view of the judgment of the Tribunal in the case of CCE-Cochin Vs. Geo Engineering Works [2003 (9) TMI 237 - CESTAT, BANGALORE] benefit of SSI exemption cannot be denied.

There is no dispute that the sales turn over of the third category of footwear along with the sales turn over of the footwear bearing .....

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sh Kumar and Mrs. Sulekha Beevi C.S., JJ. For The Appellant : Shri M.S. Negi, DR For The Respondent : Shri J.P. Kaushik, Advocate Per: Rakesh Kumar The facts leading to filing of these appeals by the Revenue are, in brief, as under: 1.1 The appellant have two shops with the name "The Heels", one shop in Connaught Place and the second shop in Pitampura, Delhi. From these shops, three types of trading is done. The first type of trading is purchasing of branded shoes of other person's .....

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tion 2f (iii) of Central Excise Act, there is no duty demand in respect of these shoes because sales turn over such shoes is within SSI exemption limit and as such the show cause notice does not demand any duty in respect of the sale of the shoes under the brand name "Heels". The third type of trading activity involves purchase of shoes of different brands packed in unit containers. In respect of these shoes, according to the respondent, they put their own MRP sticker on the shoes inst .....

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it under section 11AC has also sought imposition of penalty under Rule 26 of the Central Excise Rules, 2002 on Shri Amit Gupta, partner of the appellant firm. This show cause notice was adjudicated by the Additional Commissioner vide order-in-original dated 25/09/2009 by which the above mentioned duty demand was confirmed against the respondent firm along with interest on it under section 11AB and besides this while penalty of equal amount, i.e., ₹ 15,01,845/- was imposed on the responden .....

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15,01,845/- confirmed against it along with interest under section 11AB and also imposed penalty on Shri Amit Gupta as well as on the firm. On appeal being filed to Commissioner (appeals) against this order-in-original, the Commissioner (appeals) vide order-in-appeal dated 9/6/2010 allowed the appeal and set aside Additional Commissioner's order holding that the activity of the respondent of putting MRP stickers on the footwear and not on the containers of the shoes of different brand receiv .....

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manufacture, they would be eligible for the SSI exemption as the brand name owners have not been identified by the Revenue. Against this order of CCE (appeals), this appeal has been filed by the Revenue. 2. Heard both the sides. 3. Shri M.S. Negi, ld. DR, assailed the impugned order by reiterating the grounds of appeal in the Revenue's appeal and pointing out to the statements of various person pleaded that the MRP stickers were being put on the containers and not on the footwears themselves .....

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rsons, Shri Negi, pleaded that in respect of the brand name "Ben Sharman" and "Hitz", Shri Pawan Garg, proprietor of M/s. Garg Footwear in his statement dated 2/5/2008 has categorically stated that they were procuring the Ben Sharman and Hitz Brand shoes from M/s. Popsons International-Agra who were the manufacturers and accordingly it was pleaded that these brands belong to M/s. Popson International. It was, therefore, pleaded that the impugned order is not correct. 4. Shri .....

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ied in third schedule, packing or re-packing of such goods in unit container or labeling or re-labelling of containers including declaration or alteration of RSP on in it or any activity which would render the product marketable to the consumers would amount to manufacture; that from the language of section 2f (iii), it is clear that with regard to the declaration of MRP or alteration of the MRP, the same should be on the unit container in which the goods had been packed, while in the present ca .....

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this regard, he relies upon the Tribunal's judgment in the case of Rafique Mallick Vs. CCE-Mumbai-I reported in 2006 (193) ELT 200 (Tri-Mumbai) and also in the case of Amin Virji Vs. CCE-Mumbai-I reported in 2014 (301) ELT 699 (Tri.- Mumabi); that With regard to the question as to whether the SSI Exemption would be available, he supports the finding of the Commissioner (appeals) that the brand name owners have not been identified and hence, respondent cannot be said to be using the brand na .....

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ced by the Revenue, it cannot be presumed that the impugned brand name used by the assessee belongs to another person and benefit of SSI exemption can not be denied. 5. We have considered the submissions from both the sides and perused the records. 6. The respondent are a partnership firm of which Shri Amit Gupta is a partner. They have two shops-one shop at Connaught Place, New Delhi and the other shop at Pitampura - New Delhi. They are engaged in trading activity. The trading activity of the r .....

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vity of the respondent is that they purchased unbranded shoes from various shoe manufactures which are packed in unit containers. The containers do not have any label mentioning the brand name and MRP. In respect of such footwears, the respondent put their labels on the containers, with their brand names and MRP prints on them. In respect of this activity, there is no dispute that the same is covered by section 2f (iii) and would amount to manufacture. However, there is no duty demand in respect .....

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