TMI Blog1993 (3) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... during different periods and imposing a penalty of ₹ 20,000/- on all 4 appellants. Details of the demands are set out below: 2. The eligibility to the benefit of exemption under the notification has been denied for the reason that the goods in dispute were affixed with the brand names BYCO and FAYEMS which were the registered trade marks of M/s. Bedi Industrial Corporation and the adjudicating authority has held as follows: It has been further pleaded by the parties in their defence that after amendment of notification No. 175/86 vide notification No. 223/87 the word another person appearing in para 7 of notification should be read as a manufacturer only. This cannot be a trader. This plea of the parties is also not corre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igible for exemption contained in notification No. 175/86 for the rubber seals which are manufactured by small scale units in their brand name BYCO FAYEMS. Therefore, the goods (Oil seals) manufactured by M/s. Sito Exports, M/s. Bharat Seals, M/s. Bee Engineering and M/s. Byco International in the brand name of BYCO FAYEMS are not eligible for exemption contained in notification No. 175/86 w.e.f. 1.10.1987. 3. We find that the issue is covered on merits against the assessees, by the order of the Tribunal in the case of Thio Pharma v. Collector of Central Excise. There was a difference of opinion between the two Members constituting the Bench on the interpretation of the expression another person who is not eligible for the grant of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this notification. Therefore, according to the ld. Advocate the person should be one who is a manufacturer of specified goods and eligible for grant of exemption under this notification and should not be a person who is merely a trader because question of extending an excise exemption notification can arise for a manufacturer only. In the instant case, submits the ld. advocate for the appellants, the person namely M/s. Synthiko Formulation Pvt. Ltd. is not a manufacturer of P or P medicines; that company is merely a trading company and therefore, para 7 of the notification does not place a bar on use of trade name or brand name of such a person by the manufacturer, of the specified goods. This reasoning of the appellants' ld. advocate i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce was referred to Hon'ble Vice President as he then was: Whether the benefit of Notification 175/86-C.E. dated 1.3.1986 would be available to the goods under consideration and he has concurred with the view expressed by ld. Member (Technical). We are not able to accept the contention of Smt. Archana Wadhwa, ld. Counsel, that the 3rd Member has not given any finding on the connotation of the expression another person and that the issue is still open to decision, in view of the 3rd Member's finding in para 19 that marketing/selling agents cannot obtain the benefit of Notification 175/86. 3.4. We, therefore, see no ground to discuss the arguments of ld. Counsel that contextual interpretation of its adoption would lead to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubt due to Trade Notices, while in the present appeal, there was bona fide belief that disclosure in declaration of use of brand name of trader was not required. The case law cited by the ld. DR, namely the decisions in Vishwakarma Steel Industries and Tata Iron Steel Co. Ltd. are distinguishable on facts, as in both, wilful suppression was established by the Department. We, therefore, hold that the extended period of limitation is not applicable on the facts of this case and that the duty demand is to be restricted to the normal period of 6 months. Penal action is, therefore, not justified. 5. We also uphold the contention of ld. Counsel that the demand of duty should be calculated on the cum-duty price i.e. after deducting the duty e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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