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TMI Blog2017 (3) TMI 1495X X X X Extracts X X X X X X X X Extracts X X X X ..... shareholders in the registered company whose undertaking manufactures the goods. 2. It is not in dispute that the goods manufactured by assessee are sold to 'original equipment manufacturers' (OEMs), or buyers of equipment who require replacements, as these are tailor-made for the OEMs. The appellant had been availing exemption extended to small-scale units under notification no. 8/1998-CE dated 2nd June 1998 and its successor instruments, notification no. 8/1999-CE, 8/2000-CE, 8/2001-CE, 8/2002-CE and 8/2003-CE. 3. The demand was raised and confirmed on the ground of ineligibility to avail the benefit of exemption as assessee had been using an ineligible brand on the products cleared by them and the amount due was computed as the duty short-paid by ineligible availment of the exemption. 4. Learned Counsel for appellant contends that the impugned order has placed an erroneous construction on paragraph 4 and 5 of the notification relevant to the year to hold that the small scale exemption was not allowable, that the brand 'TIDLAND' was not affixed on any of the products cleared by them and that the name was to be found only on letter-heads, clearance invoices and catalogues whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nufacturer nor for any other parts manufactured by them. Moreover the original manufacturers provide wider publicity through their website, catalogues and even through their telecontacts, numbers of which are prominently given, for these drawing numbers for each and every product. Such numbers are very indicative of the originality of the product and even the ultimate buyers of packaging machineries etc. of the assessee's customers place their orders for "tidland" products and they can verify the authenticity of the goods. The website of the noticees also provides that Tidland Web Accessories Pvt. Ltd. is a Joint venture Between Kohli Industries & Tidland Corporation of USA to manufacture and market the complete range of Tidland Products (emphasis given). From this the purpose of the emergence of this joint venture is very clear that is to say to manufacture and market the complete range of Tidland Products. It is, therefore, evident that the noticees very cleverly found an imaginary loophole on the wordings of the exemption notifications and exploited it to their ill- motivated avariciousness by inflicting huge dent in the government exchequer. It is a known fact that the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncompromising legalese of the exemption notification. 7. We take note of fourth paragraph of one of the notifications which reads thus: '4. The exemption contained in this notification shall not apply to specified goods bearing a brand name or trade name, whether registered or not, of another person, except in the following cases: (a) where the specified goods, being in the nature of components or parts of any machinery or equipment or appliances, are cleared for use as original equipment in the manufacture of the said machinery or equipment or appliances by following the procedure laid down in the Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001: Provided that manufacturers, whose aggregate value of clearances of the specified goods for use as original equipment does not exceed rupees one hundred lakhs in the financial year 2002-2003 as calculated in the manner specified in paragraph 1, may submit a declaration regarding such use instead of following the procedure laid down in the said Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001:....." 8. From this, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of the Madras Bench in the case of Forest Industries (P) Ltd. is well appropriated. The decisions referred to by the ld. JDR are in different facts and circumstances and the ratio of the same is not applicable in the instant case. We take note of another decision of the Tribunal in the case of Trimurti Weldmesh (P) Ltd. v. C.C.E. - reported in 1993 (64) E.L.T. 419, wherein it was held that embossing the brand name at the forging stage, before such forgings were received at the appellants' unit for further working upon will not be hit by the exclusion clause contained in para 7 of the Notification as it was not the appellant who was affixing any brand name/trade name in the goods. As such as observe that in the instant case as the manufacturer is not affixing the D.G. Sets with another person's trade name the same would not be attracted by para 7 and the benefit of Notification would be available to the appellants.' 10. We are, therefore, in agreement with Learned Counsel that the portion of the exemption notification supra is not intended to govern the use or restrict eligibility arising from use of the ineligible brand name on any documentation. 11. It would not be in acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion he cannot be denied its benefits by calling in aid any supposed intention of the exemption authority. In the case of Good 'Year India Ltd. v. Union of India reported in 1990 (49) E.L.T. 39 (Delhi), the Hon'ble Delhi High Court has relied upon the judgment of the Hon'ble Supreme Court reported in AIR 1979 SC 193 (Chief Justice of Andhra Pradesh v. L.V.A. Dikshitulu) to hold that the primary principle of interpretation is that a constitutional or statutory provision should be construed according to the intent of those who made it. Normally such intent is gathered from the language of the provisions and if the language or phraseology employed by the legislation is precise and plain and thus by itself proclaims its legislative intent in unequivocal terms, the same must be given effect to. 5.1 The Mischief Rule relied upon by the lower appellate authority has no application to the facts of this case. A commentary on the Mischief Rule is provided in G.P. Singh's Principles of Statutory Interpretation, 5th Edition at page 82 as follows : (b) Rule in Heydon's case; purposive construction: mischief rule : When the material words are capable of bearing two or more constructions the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and to be examined and construed in the light of the surrounding circumstances and constitutional principle and practice." The Supreme Court has held in the case of Commissioner of Wealth Tax v. Smt. Hashmalunissa Begam reported in AIR 1989 SC 1024 = 1989 (40) E.L.T. 239 (SC) as follows : "The rule of construction that if the statutory provision is susceptible or admits of two reasonably possible views then the one which would promote its constitutionality should be preferred on the ground that the legislature is presumed not to have intended an excess of its own jurisdiction, is subject to the further rule that it applies only where two views are reasonably possible on the statutory language. If the words of the Statute, on a proper construction, can be read only in a particular way, then it cannot be read in another way by a Court of construction anxious to avoid its unconstitutionality". 5.2 To our minds it appears that the exclusion contained in clause 7 of the notification applies only to manufacturers who actually affix the brand name/trade name on specified goods and not to goods affixed with a brand name/trade name. Therefore, in our view, as the appellants do not affix ..... X X X X Extracts X X X X X X X X Extracts X X X X
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