TMI Blog2018 (10) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... er raised by the assessee at any point of time. Therefore, we cannot permit the assessee to raise such contention for the first time in this appeal, especially in the earlier round of litigation, which was challenge to levy of duty had attained finality against the assessee. The assessee had suppressed information from the department. The case on hand is one pertaining to the claim for exemption. The burden is on the assessee to establish that the goods manufactured by them will come within the ambit of the exemption notification and the burden of proof is on the assessee to establish on facts that they are entitled for exemption. Furthermore, the exemption notification are required to be interpreted strictly and in favour of the department and in case of any ambiguity or doubt, it will be resolved in favour of the Revenue and not in favour of the assessee - the Tribunal rightly held that the extended period of limitation was invokable in the facts and circumstances of the case. Penalty - Held that:- Penalty is not warranted and is set aside. The substantial questions of law framed for consideration are answered against the assessee - penalty deleted - petition allowed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... why penalty should not be imposed under Section 11AC of the Act as well as under Rule 173Q of the Central Excise Rules, 1944 (hereinafter referred to as Rules ); why interest should not be demanded under Section 11AB of the Act and why the seized goods should not be confiscated under Section 110 of the Customs Act made applicable to the Central Excise Act. 3.The assessee filed their reply dated 05.03.2001 stating that they had not manufactured the said goods namely, offline UPS with brand name of another person as alleged in the show cause notice and that there is no mention in the show cause notice that any other manufacturer has manufactured offline UPS with this indication Cansoft Tiny etc. and that if a brand name is registered for a particular product, another manufacturer can use it for another product that they had manufactured and supplied offline UPS with Cansoft Gold etc. to M/s. Cansoft Systems Private Limited with effect from 1996 and if anybody else use this brand name, they have to be considered as manufacturers of goods bearing the brand name of others. Thus, it was contended that burden of proof lies on the Department, which has not been discharged and therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turers of offline UPS with the said name and therefore, benefit of the notification has to be extended to the assesses. The revenue filed an appeal before the Division Bench of this Court in C.M.A.No.26 of 2005 raising the following two substantial questions of law: (i) Whether the Tribunal was right in holding on a purposive interpretation of the provisions of the SSI exemption Notification No.1/93 CE by stating that para 4 of the said notification stipulates that the 1st respondent should have used the brand name of other person on the same item which was manufactured by other person who were not entitled to the benefit of SSI exemption? (ii) Whether on facts and circumstances of the case, the Tribunal was right in holding that it was not the case of Revenue that both the name affixed by the 1st respondent was registered brand name used by another manufacture who was disentitled to the benefit of Notification and were affixing the same on offline UPS? 6.The Division Bench, to which one of us as a party (T.S.S.J.) by judgment dated 01.04.2009 allowed the appeal filed by the revenue and decided the substantial question of law No.1(supra) in favour of revenue and re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee has reconciled with the fact that they are liable to pay duty. The assessee seeks to contest only one issue before us with regard to whether the extended period of limitation can be invoked. The assessee's case is that they are manufacturers and sell offline UPS and they being a small scale industry coming under the turnover limit of exemption notification No.1/93 and assessee cleared the manufactured goods without payment of duty due to exemption. Further, the assessee's case is that for the purpose of identification of the goods for despatch to the buyers, the assessee affixed the name of 'Cansoft'. It is submitted that order passed by CESTAT is not sustainable, as it is contrary to the decision of the Division Bench of this Court in the case of Micro Chem Products (India) Pvt. Limited v. CESTAT, Chennai, 2017 (355) ELT 45 (Mad.) Further, it is submitted that the order of the Tribunal is not sustainable because the grounds, which were never raised in the show cause notice, were the basis of the decision of the Tribunal. Further, the assessee has been discriminated inasmuch as the orders passed in the case of other similarly placed assessees we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that in the case of Micro Chem Products (India) Private Limited, the requirement for being entitled to the benefit of the exemption, notification Nos.13/92 and 22/98 the pre-requisite is that declaration is required to be filed. Further, the decision in the case of Ramply (India) Limited was considered by the Division Bench in the case of Micro Chem Products (India) Private Limited and it was held to be factually not applicable to the case before the Division Bench. Furthermore, in the case of Micro Chem Products (India) Private Limited, the assessee took a specific stand that since it was below the monetary limit fixed for clearance qua SSI unit, it never had an occasion to make any disclosure via classification list. Therefore, it is submitted that the decision in the case of Micro Chem Products (India) Private Limited, is not applicable to the assessee's case and the Tribunal rightly upheld the invocation of the extended period of limitation and upheld the orders passed by the lower Appellate Authority and the Adjudicating Authority. 10.Heard Mr.T.R.Ramesh, learned counsel appearing for the assessee and Mr.A.P.Srinivas, learned Senior Panel Counsel for the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noted that the assessee was not registered with the Central Excise Authorities on account of the fact that its clearances were below the monetary limit, specified in various notifications, issued from time to time. The Court held that the assessee had no occasion to file a classification list and that the Tribunal without appreciating the said fact applied the decision in the case of Ramply (India) Limited (Supra). The decision in the case of Ramply (India) Limited was distinguished by observing that that there was a factual finding against the said assessee to the effect that, even though a classification list has been filed, the assessee had failed to disclose the use of brand name belonging to another person. Accordingly, the Court held that the Tribunal wrongly rejected the cross objections filed by the assessee. The moot question would be whether a declaration is required to be filed by the assessee for being entitled to claim the benefit of the exemption notification. 13.It is the submission of the learned counsel for the assessee that there is no such requirement and in this regard, reference was made to notification No.22/98-CE (NT), dated 04.06.1998. We are required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s than the specified limit during the current financial year. 14.Admittedly, in the instant case, the assessee was using the brand name of a different entity and presumed to have full knowledge that they are not entitled to the benefit of the exemption notification. The Tribunal relied upon the decision in Ramply (India) Limited, the assessee therein was not the owner of the mark Ram's and was not entitled to the exemption of payment of excise duty, whereas the assessee being a small scale industry would be entitled to concessional rate of duty, if otherwise eligible. While considering as to whether in the facts of the said case extended period of limitation could be invoked, it was held that in the said case, the assessee in the classification list did not disclose the use of brand name belonging to another person and 1993 notification sets out that, where a manufacturer affixes the specified goods with a brand name or trade name of another person, who is not eligible for the grant of exemption under this notification, then they are not entitled to the exemption. It was held that the assessee in the said case, admittedly was using the mark of another company, which may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly erroneous and required to be set aside. Ultimately, the appeal filed by the Revenue was allowed and the order passed by the Commissioner was restored. However, the assessee therein was granted relief from levy of penalty. Thus, by applying the decision in the case of M/s.Grasim Industries Limited, the only conclusion that can be arrived at is to confirm the impugned decision of the Tribunal and dismiss the appeal filed by the assessee. The learned counsel for the assessee contended that the legal issue attained finality only after the decision in the case of Grasim Industries Limited. However, we find that such contention was never raised by the assessee at any point of time. Therefore, we cannot permit the assessee to raise such contention for the first time in this appeal, especially in the earlier round of litigation, which was challenge to levy of duty had attained finality against the assessee. 16.One more reason to hold that the decision in Micro Chem Products (India) Pvt. Limited, would not be applicable to the facts of the present case is that the assessee therein took a specific stand that it was below the monetary limit fixed for clearances qua SSI unit and nev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under notification No.13/92 as amended, in order to claim exemption from registration from the department. It is further held that the department became aware of the fact of their manufacturing activity only when the officers made a surprise visit to their manufacturing unit. Therefore, it is held that the assessee had suppressed information from the department. The case on hand is one pertaining to the claim for exemption. The burden is on the assessee to establish that the goods manufactured by them will come within the ambit of the exemption notification and the burden of proof is on the assessee to establish on facts that they are entitled for exemption. Furthermore, the exemption notification are required to be interpreted strictly and in favour of the department and in case of any ambiguity or doubt, it will be resolved in favour of the Revenue and not in favour of the assessee. Thus, in our considered view, the Tribunal rightly held that the extended period of limitation was invokable in the facts and circumstances of the case. However, with regard to levy of penalty, we apply the observations of the Hon'ble Supreme Court in the case of Grasim Industries and delete the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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