TMI Blog2017 (7) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... r clearances qua SSI Units, it never had an occasion to make any disclosure via a classification list - Held that: - this cannot be construed as suppression of fact, within the meaning of Section 11A(1) of the 1944 Act. Mere non-disclosure of facts, in such like circumstances, cannot constitute suppression of facts. Given the way the Section is framed, the expression "suppression of fact", appears in the company of words and expressions, such as, fraud, collusion, wilful misstatement. Therefore, the expression "suppression of facts", has to take colour from the words whose company, it appears in. A mere non-disclosure of information, when there is no obligation in law to furnish the same, will not amount to, in our opinion, fraud or collusion or even, wilful misstatement and, hence, trigger the extended period of limitation. The Tribunal, in our opinion, wrongly rejected the cross objections filed by the Assessee on the issue of limitation. Since, the extended period of limitation is not applicable, the Revenue would also not be entitled to levy penalty under Section 11AC of the 1944 Act, save and except, demand duty, for a period of of six (6) months, prior to the date of SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concern, i.e., MPPL. Accordingly, a Show Cause Notice dated 08.11.2000 (in short, the SCN ) was served on the Assessee. 3.4. Via the said SCN, it was proposed to deny the Assessee, the exemption from excise duty, it enjoyed being an SSI Unit, by virtue of the various Notifications, issued from time to time, i.e., Notification No.7/97-CE dated 01.03.1997; Notification No.16/97-CE dated 01.04.1997; Notification No.8/98-CE dated 02.06.1998; Notification No.8/99-CE dated 28.02.1999 and Notification No.8/2000-CE dated 01.03.2000 (hereafter collectively referred to as 'Notifications'). Accordingly, the SCN proposed the following: i) to levy duty, in the sum of ₹ 4,19,575/-, for the period, spanning between June, 1997 and 25.10.2000 ii) to levy penalty under Section 11AC of the Central Excise Act, 1944 (in short, 'the 1944 Act'). 3.5. In respect of the said SCN, a reply dated 05.01.2001 was filed by the Assessee, pursuant to which, the Order-in-Original dated 31.10.2000 (sic 31.10.2001), was passed by the Adjudicating Authority. 3.6. As indicated at the outset, the Order-in-Original, was in favour of the Assessee, and, hence, proceedings initiat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gabad, 1999 (108) ELT 686 v) Maheswari Industries V. CCE, 2017 - TIOL - 880 HC- AP vi) Rajdoot Paints Ltd. V. CCE, 2001 (134) ELT 281 Tri-Del. vii) A.J.Bantex Pvt. Ltd. V. CCE, 2008 (229) E.L.T. 582 (Tri-Bang.) 5.3. Furthermore, Mr.G.Natarajan, relies upon the circular bearing No.52/52/94- CX, dated 01.09.1994, issued by Central Board of Excise and Customs, (in short, '1994 circular'). In particular, reliance is placed by the learned counsel on paragraph 4 of the 1994 Circular. Based on the provisions of paragraph 4, it is contended that since, none, other than the Assessee had claimed ownership in the brand name, Micro , it could not be said that the Assessee was in violation of the exemption Notifications, issued from time to time, with respect to SSI Units. 6. On the other hand, Mr.Srinivas, who appears on behalf of the Revenue, says that, no interference is called for with the impugned judgment and order of the Tribunal. It is submitted that the issue was neither contentious nor debatable and, therefore, the extended period of limitation was applicable in the instant case. 6.1. In support of his submissions, learned counsel has relied upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (India) Pvt. Ltd. which is a separate legal entity. The Respondent will be disentitled to SSI Exemption only if they use the Brand Name or Trade Name of another person. There is no claimant for the name MICRO before any Competent Legal Authority. The Central Board of Excise Customs letter MF (DR) Circular No.52/52/94- CX dated 01.09.1994 discusses the issue in detail and states (vide para 4 that If brand name is not owned by any particular person, the use thereof will not deprive a Unit of the benefit of the small scale exemption scheme. This applies not only to locks, but to all other goods specified in Notification No.1/93 CE. When the Department has not established the ownership of the brand name as belonging to a particular person and also when no person has claimed ownership of the brand name, then it is immaterial for the purpose of claiming the benefit of SSI Exemption Scheme, whether the said brand name is being used on a similar product or different products. Thus, I do not find any infirmity in the impugned order. Revenue Appeal rejected..... 9. However, as alluded to above, the views held by the Adjudicating Authority and the First Appellate A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, the contention is that they must be used in relation to the product and for the purposes of indicating a connection with the other person. This is further made clear by the words any writing . These words are wide enough to include the name of a company. The reasoning given by the Tribunal based on a dictionary meaning of the words write and writing is clearly erroneous. Even the name of some other company, if it is used for the purposes of indicating a connection between the product and that company, would be sufficient. It is not necessary that the name or the writing must always be a brand name or a trade name in the sense that it is normally understood. The exemption is only to such parties who do not associate their products with some other person. Of course this being a notification under the Excise Act, the connection must be of such a nature that it reflects on the aspect of manufacture and deal with quality of the products. No hard-and-fast rule can be laid down however it is possible that words which merely indicate the party who is marketing the product may not be sufficient. As we are not dealing with such a case we do not express any opinion on this aspect. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise, Raigad Vs. Ramply (India) Ltd. [2010 (249) E.L.T. 31 (Bom.)], the Hon'ble Bombay High Court has held that the non-declaration of use of another's brand name despite having knowledge about the same, amounts to suppression, setting aside the Tribunal's order that non-disclosure of the use of another's brand name in the classification list did not tantamount to suppression. The submission of the learned counsel for the assessees is that the extended period cannot be invoked against the assessees as, during the period in dispute, in the present case, which is 1997 to 2000, there were decisions to the effect that the use of brand name on different products would not disentitle an assessee to avail SSI exemption and in these circumstances, it cannot be held that the assessee was guilty of suppression with intent to evade payment of duty. However, this stand was never taken before the authorities below and the reply to the show-cause notice discusses only the merits of the availability of the SSI benefit. Therefore, following the ratio of the decision of the Hon'ble Bombay High Court in Ramply cited supra, we agree with the contention of the Revenue that the deman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Tribunal, and also distinguished the decision of the Apex Court in the case of Astra Pharmaceuticals (P) Ltd. (supra) the issue has been finally settled in favour of the Revenue. 11. In these circumstances, in the facts of the present case, the argument that the assessee bonafidely believed that inscribing words in technical collaboration with West German Company would not constitute user of the brand name of the West German Company deserves acceptance, especially when there were several decisions of the Tribunal as also the decision of the Apex Court, which supported the argument of the assessee. The fact that the assessee did not disclose the 1975 agreement does not enhance the case of the Revenue, because the said agreement was only a technical know-how agreement and not an agreement for user of the brand name. If the assessee as also the Revenue at the material time in the light of various decisions were under the belief that inscribing the words 'in collaboration with the West German Company' on the manufactured goods did not constitute user of brand name, then merely because, the Apex Court subsequently in the case of Grasim Industries Ltd. (supra) r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in C.C.E. v. Fine Industries MANU/CE/0405/2002 : 2002 (146) E.L.T. 53 (Tri.). The Full Bench of the Tribunal held that for the denial of exemption, both the Assessee and the brand name owner, should manufacture identical goods. In the present case, the Assessee was using the brand name for a product other than shaving cream which was the product intended to be manufactured by the brand name owner. In these circumstances, the Tribunal took the view that the Assessee appears to have acted bona fide in making its clearances and claiming exemption from excise duty. Consequently, the Tribunal took the view that there was no warrant for extending the time of limitation beyond the period of one year under the proviso to Section 11A(1) of the Act. 5. We are of the view that opinion expressed by the Tribunal is well reasoned. There is no doubt that there was a conflict of views and that was resolved much later in the year 2002. The period with which we are concerned is 1998-1999 and 1999-2000 at which time the controversy had not been settled by the larger Bench of the Tribunal. The Assessee was justified in proceeding on the basis that it was exempt from excise duty particularly durin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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