TMI Blog2019 (7) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... he description and nature of goods manufactured by the owner of the HARDWYN brand Mrs. Santu Devi is not on record. It is also not known whether the said owner is still using the said brand name on the products manufactured by her. In a catena of decisions, it has been held that bar of S.S.I. exemption in respect of branded goods is inapplicable if the brand name is used by the owner on different goods or the owner has abandoned use of the brand name - In the present case, since no attempt has been made by the department to find out the factual position as regards use or non-use of the HARDWYN brand by Mrs. Santu Devi, the denial of exemption merely on the basis of information regarding registration of HARDWYN brand in the name of Mrs. Santu Devi, without ascertaining the actual use of such brand name by the registered owner, is unsustainable. Alleged clearance of HARDWYN brand goods by the appellant assessee - HELD THAT:- There is absolutely no evidence to even suggest that the entire clearance made by the appellant assessee was only of HARDWYN brand goods - It is admitted fact that the appellant is also manufacturing goods with FIBA‟ brand. This proves that the departme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s Fiba Hardwyn Locks Ltd. ₹ 40,74,612/- ₹ 12,80,274/- ₹ 53,54,886/- Penalty on M/s Fiba Hardwyn Locks Ltd. ₹ 40,74,612/- ₹ 12,80,274/- ₹ 53,54,886/- Penalty on Shri R.S. Sayal ₹ 6,00,000/- ₹ 6,00,000/- ₹ 12,00,000/- Penalty on Shri S.S. Sayal ₹ 6,00,000/- ₹ 6,00,000/- ₹ 12,00,000/- 2. All these appeals involve common question of law namely,eligibility of S.S.I exemption to the manufacturer, in view of manufacture of branded goods and also the issue of limitation as well as imposition of penalty on the appellants. Therefore, all these six appeals are taken up together for disposal. 3. The facts in brief of the matter are that M/s Fiba Hardwyn Locks Ltd. are manufacturer of hardware items namely D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re not using brand name of any other person, they are availing S.S.I. exemption under Notification No.8/2003-CE on all the excisable goods manufactured by them; that the unit is not registered with central excise department and they have filed the requisite declaration as SSI unit. It was also stated that they are using HARDWYN brand for a long time and are also holding ISI Mark. In course of investigation, Shri Rubaljeet Singh Sayal was summoned by the investigating officers and his statement was recorded by them under section 14 of Central Excise Act 1944 on 05.10.2009. In his statement, Shri Rubaljeet Singh Sayal stated that FIBA is registered brand of M/s Fiba Hardwyn Locks Ltd.; that HARDWYN is registered brand of Shri S.S. Sayal who has assigned the same to M/s Fiba Hardwyn Locks Ltd. by assignment deed dt. 17.02.2006. The branded goods bearing brand name HARDWYN which had been detained in the premises of Efficient Devices Pvt. Ltd. in course of search, was subsequently released unconditionally by the officers after scrutiny of relevant Bills/invoices relating to the detained goods. 6. The branded goods detained under panchnama dt. 26.08.2009 at the premises of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame are owned by them, they were availing exemption from central excise duty in terms of notification no.8/2003 CE dt. 01.03.2003 as amended. The officers of Anti Evasion wing of Delhi II Commissionerate of Central Excise visited and searched the premises of M/s HARDWYN Industrial Trading Corporation, M/s Efficient Devices Pvt. Ltd. and M/s Fiba Hardwyn Locks Ltd. on 26.08.2009.In course of search, the officers found goods bearing brand name HARDWYN and also some packing material bearing HARDWYN brand in the premises of M/s Fiba Hardwyn Locks Ltd. The goods engraved with brand name HARDWYN valued at ₹ 5,57,920/- was first detained under panchnama dt.26.08.2009 which was subsequently converted into seizure of goods vide Seizure Memo dt. 22.02.2010. A show cause notice dt. 24.02.2010 was issued to M/s Fiba Hardwyn Locks Ltd. and Shri Rubaljeet Singh Sayal proposing confiscation of seized goods and for imposition of penalty. The ld. Deputy Commissioner of central excise, Division V, Janakpuri, New Delhi, vide Order-in-Original no. 183/10 dt. 03.12.2010 passed the order for confiscation of seized goods and demand of applicable Central Excise duty. He also imposed penalty on both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. This clearly shows that the show cause notices in these cases have been issued on the basis of presumption only, which is impermissible in law. 12. As regard registration of HARDWYN brand in the name of one Santu Devi of Bangalore, the ld. Counsel submitted that there is no evidence to show that the said brand name is used by Mrs. Santu Devi on the same or identical goods manufactured, as by the present appellant. It is also not known whether the said Santu Devi is using the brand name or has abandoned the same. It is settled law that bar of SSI exemption in respect of branded goods is inapplicable, in cases of use of brand name by the registered owner on different goods and also in cases where the use of brand name is abandoned by the registered owner. 13. The ld. Counsel further submitted that there is not an iota of evidence to suggest that the entire clearance of excisable goods by the appellant assessee during the relevant period was of only HARDWYN brand goods. The invoices relied upon by the department do not indicate only HARDWYN branded goods. It is admitted fact that the appellant assessee are manufacturing goods with both FIBA‟ and Ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ld. AR appearing on behalf of the department supported the impugned orders. He submitted that the exemption has been rightly denied to the appellant in view of the fact that the HARDWYN brand was owned by other person. He also submitted that ownership of HARDWYN brand was wrongly claimed by the appellant. He further submitted that the department has taken the value of entire clearance as being of HARDWYN brand goods, due to the fact that the appellant assessee failed to provide clearance value of such branded goods. In view of ineligibility of exemption to the appellant assessee, the demand of duty is fully justified. He also submitted that non-payment of duty by way of misstatement or suppression of true facts, the intention to evade payment of duty on the part of the assessee is proved. He, therefore, submitted that extended period of limitation has been rightly invoked and penalty on the appellants has also been rightly imposed. He prayed for upholding the impugned orders. Discussions Findings 17. Heard both sides, considered the submissions made before us and perused the records. In these cases, the issue on merits is eligibility of exemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred on other person(s) by executing Assignment deed, I observe that the requirement of Registration with the Trade Mark authority should not be insisted upon. 10. As regards the issue of confiscation of the seized goods. It is observed that since the appellant is entitled to use the brand name HARDWYN, the goods found in the premises bearing the brand name HARDWYN are his valid possession and therefore are not liable to confiscation and penalty imposed on this account is not sustainable. 18. We find that the department did not prefer appeal against the said Order-in-Appeal dt.02.05.2011. Therefore, the same has attained finality. As regards registration of assignment deed for the purpose of availing S.S.I. exemption under notification no.8/2003 CE dt.01.03.2003 as amended, we find that the issue stands decided in favour of assessee in the CASE OF Jepika Paints vs UOI 2008 (232) ELT 424 (MP). We find that in CCE vs Primella Sanitary Products reported in 2005 (184) ELT 125 (SC), the Hon ble Supreme Court has affirmed this Tribunal‟s view that so long as assignment stands, the assessee is entitled to the benefit of SSI exemption. In the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to re-agitate the same issue on the basis of Trade Mark Registration Certificate alone, without making investigation about actual use of the HARDWYN brand on the same or identical goods, by the said purported owner of the brand name. The issue of eligibility of SSI exemption in cases were same or identical brand name had been used by more than one manufacturer, was considered in some of the cases. In P B Pharmaceuticals (P) Ltd. Vs CCE reported in 2003 (153) ELT 14 (SC), the Hon ble Supreme Court has held that owner of brand name is not obliged to make a roving enquiry to find out use of the same brand name by any other person. In CCE vs Bhalla Enterprises reported in 2004 (173) ELT 225 (SC), he Hon ble Court has held that exemption is not to be denied merely because somebody else is also using the same brand name. Under the circumstances, we hold that re-agitating the issue of validity of assignment deed after more than two years of decision in favour of the assessee, without challenging such order is unjustified and illegal. We also hold that denial of exemption in the present case, solely on the basis of Trade Mark Registration Certificate in the name of other person is uns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons. In the present matters, since the description and value of the excisable goods has been presumed by the department, the demand of duty on basis of such presumed facts is unsustainable in law and hence has to be set aside. Accordingly we set aside the demand of duty on this ground also. 23. As regards limitation, we agree with the appellant that they were under bonafide belief that they were using their own brand names and hence eligible to S.S.I exemption. Such bonafide belief was vindicated by the Order-in-Appeal dt.02.05.2011. It is well settled law that extended period of limitation is not available to the department in cases where the assessee entertains a bonafide belief about non-levy of central excise duty. Under the circumstances, the extended period was not available to the department in the present matter and the demand of duty is, therefore, hit by bar of limitation also. 24. In view of unsustainability of the duty demand in the present matters, we hold that interest is not payable and penal provisions of law are not attracted in these matters. Therefore we set aside the demand of interest and penalties imposed on the appellants in the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X
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