9911796707
TMI Blog2007 (9) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... s falling under Chapter 68 of the Schedule to the Central Excise Tariff Act, 1985. During the scrutiny of the records, it was noticed that the appellants were affixing their finished goods with a label, which contained a inscription "In Technical Collaboration with Sonnenflex Schleifmittelwerk, West Germany". 3. On further investigation, the officers came to a conclusion that the appellant is ineligible to avail the benefit of small scale industries, due to inscription on the products. Show cause notice dated 14/06/2000 was issued invoking extended period for the demand of duty and for imposition of penalties. The adjudicating authority confirmed the demand and imposed penalties and also directed for payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discontinued using of the inscription "Technical Collaboration with Sonnenflex Schleifmittelwerk, West Germany" for the relevant period. It is his submission that this point was brought to the notice of the adjudicating authority in the written submission when they appeared before the adjudicating authority. It is his submission that the adjudicating authority as well as the Ld. Commissioner (Appeals) in all these appeals did not consider this fact and held against the appellants, based only on the order-in-original dated 16/04/2001. 7. Ld. SDR submits that in respect of Appeal No.E/2214/01, it is covered against the appellants on merits. It is his submission that on time bar also the appellant has&nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fmittelwerk, West Germany" would not indicate, affixation of brand name. If the appellant was under bona fide belief that this inscription would not mean to affixing of brand name, the intention of the appellant while claiming the benefit of small scale industry notification cannot be faulted with and it has to be held that they were under bona fide belief. The Division Bench of the Tribunal in the case of Harpar Pharmaceuticals (P) Ltd., Vs. CCE, Thane-II, as reported at 2006 (194) ELT 65 (Tri.-Mum) had held that extended period of time is not invocable when the assessee is entertaining a bona fide belief that the affixation of brand name will not disentitle him from availing the benefit of Small Scale Industry.& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal is modified to this extent. In other respect the order of the Tribunal stands maintained". In Kohinoor Elastics Pvt. Ltd. Vs. Commissioner of Central Excise, Indore, 2005 (188) E.L.T. 3 (S.C.) the issue involved was the application of notification dated 28th February, 1993. From a consideration of the judgments and the ratios of the judgment's it would be clear that in case where the Tribunal had given an interpretation as understood by the Respondents. The law on the subject was not clear. In such circumstances unless the predicates of the proviso to Section 11A are satisfied, Section 11A cannot be invoked to levy penalty nor could the extended period of limitation as provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re squarely covered by the above said ratio, as during the relevant period the appellant could have entertained a bona fide belief that the inscription made by them on their final products amounts to non-affixing of brand name. The show cause notice dated 30/06/2000 invokes extended period from 1995-96 and 1999-2000. The demand for the period within time from the date of the issuance of the show cause notice is required to be confirmed against the appellants. Since the show cause notice does not give the details of the demand for the period within time from the date of show cause notice, we are of the view that this issue has to be decided by the lower authorities. As such, the impugned order to the extent it confirms the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted in the written submission that they had discontinued the use of words "technical collaboration with Sonnenflex Schleifmittelwerk, West Germany". We may re-produce the same:- "We have since long deleted the wordings "Technical collaboration with Sonnenflex, West Germany", from our labels". 13. It can be noted from the above reproduced written submissions made by the appellants that they were contending before the adjudicating authority that in respect of these appeals they had discontinued the use of the word, which would imply that they were not clearing the goods with any brand name and remains undisputed. We find that revenue has not come up with any contrary evidence to show that during the relevant p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
