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TMI Blog2017 (5) TMI 690X X X X Extracts X X X X X X X X Extracts X X X X ..... Durga Nagar Colony, Punjagutta, Hyderabad-50082. 3. Pursuant to investigation, it emerged that MBL manufactured and cleared dutiable goods with the trade mark/logo of MVF, accordingly the said trade mark/logo will fall under the definition of "trade name" in the relevant SSI Notifications. If further, appeared to the Department that: i) MBL have manufactured and cleared that goods bearing the trademark name of MVF. ii) MBL were clearing the dutiable goods without payment of duty and without obtaining Central Excise Registration till initiation of investigation. iii) During 2002-2003 and 2003-2004, value of clearances of all goods manufactured by M/s. MBL exceeded Rs. 3 crores respectively. iv) MBL are not eligible for exemption under relevant SSI notification during the years 200-2001 to 2004-2005 for the reasons mentioned supra. v) For the purpose of determining the duty liability, Products falling under chapter 30 of Central Excise Tariff Act, 1985 (Sulphaprim) are to be valued as per Section 4 of the Central Excise Act, 1944. vi) Products viz. Dar, Dazzler and Propel falling under chapter sub heading Nos. 3803.10 are to be assessed to duty under Section 4 of the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are:- i) Issue is barred by limitation since show cause notice was issued three years after visit of Officer's and exchange of correspondence. ii) Chemical Examiner's opinion in respect of two products "Binder" and "Commander" is that the former is feed and the latter is a mineral substance for water purification. Hence, demand of duty on these two products cannot be levied. iii) No evidence was let in or exists to say that appellant knowing that the goods are fungicides and insecticides still failed to inform and take out Central Excise registration. iv) Cum duty benefit should be extended for computing value of clearances and quantification of demand. v) Imposition of penalties is unjustified. Apart from mandatory penalty under Section 11AC, huge penalties have also been imposed under Rule 173Q of erstwhile Central Excise Rules and Rule 25 of Central Excise Rules. 7. On the other hand Sh. Nagraj Naik, Ld. AR, on behalf of Revenue, supports the adjudication. 8. Heard both sides and have gone through the facts and records of the cases. 9. It is not in dispute that exemption contained in SSI notifications issued from time to time shall not apply to specified goods bearing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o's.8/2001 CE dated 01.03.2001 as amended, 08/2002-CE dated 01.03.2002 as amended and 8/2003 CE date 01.03.2003 as amended shall not apply to the specified goods bearing a brand name or trade name whether registered or not of another person. In this respect 'Brand name' means a brand name or a 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 far the purposed 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. The trade mark/logo of MVF, which is used by M/s MBL on their production falls under the category of 'trade name' as per the definitions of Brande name given under the said notifications. The assesses in their reply dated 22.07.2006 have stated that M/s MBL and MVF have been using the same brand name jointly because of their closeness of the partners. They had a clear understanding amongst them that both can utilize the some brand. Even the brochures carrying the specified brand name, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t applicable in the present case. M/s Matrix Vet Formulations, has started using the brand name, Trae Mark from 1996 onwards on their goods. Thus, M/s Matrix Vet formulations is the owner of the brand name, trade mark. As per the Memorandum of understanding dated 05.12.1998, 'M/s Matrix Vet formulations has agreed to usage of the said brand name/trade mark by M/s Matrix Vet Pharma Ltd., (at present M/s MBL). In return M/s Matrix Vet Pharma Pvt. Ltd., shall render and furnish marketing support for the products of MVF as consideration. In the circumstances, we are unable to find any infirmity with the decision of the adjudicating authority that MBL are using Brand name/Trade mark of another person on their products and hence, in respect of these products MBL is not eligible for the SSI exemption. The prayer of the appellant of this issue will therefore fail. 11. Coming to the classification of the products manufactured by MBL as held in the impugned order, we find that the appellants have not disputed the same, except in the case of 'Bindex Gel' and 'Commander'. However, even those contentions are not substantiated satisfactorily. The classification of the products as arrived at in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise duty of Rs. 78,76,135/- and education cess Rs. 6,346/- with interest liability thereon on MBL is therefore, not interfered with. 14. Appellants have contended that cum-duty benefit should have been given to them. We find that the adjudicating authority has already been quite generous on this score, as seen from para 44 of the order. Though the value of goods cleared for home consumption was Rs. 5,42,80,572/- during February, 2001 to November, 2003 (in case of Bindex Gel upto March, 2005), while calculating the duty liability, transaction value of the goods has been taken as cum-duty value in respect of goods liable for Section 4 assessment. Even for goods requiring Section 4A valuation, due abatement has been permitted by the adjudicating authority. 15. Appellants have further contended that penalties imposed on them were too harsh and that there was no need for multiple penalties. It is seen that while equal penalty of Section 11AC of the Act has been imposed on MBL a penalty of Rs. 50,00,000/- has also been imposed on them under Rule 173Q/Rule 25 of Central Excise Rules. In our considered opinion, when equal penalty amounting to Rs. 78,76,135/- has been impose ..... 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