9911796707
TMI Blog2019 (2) TMI 1776X X X X Extracts X X X X X X X X Extracts X X X X ..... st Order-In-Original dated 28.12.2007 passed by the Joint Commissioner of the Customs, Panchkula. 2. The facts of the case are that the appellant, M/s Ishan Industries are engaged in the manufacturer of plywood/plyboard falling under Chapter Heading 44.08 of the First Schedule to the Central Excise Tariff Act, 1985 for which they are registered with the Department. The appellant also a SSI unit availing exemption under Notification No. 08/2001-CE dated 01.03.2001 as amended by Notification No. 36/01- CE (dated 26.06.2007). Acting on an intelligence, the officer of the Anti- Evasion branch of Central Excise Commissionerate, Panchkula visited the factory of noticee on 02.08.2004 and found that the appellant was engaged in manufacture of bra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest and also imposing the penalty on the appellant. This order was subject matter in appeal before the Commissioner (Appeal), who passed the impugned order. 3. Ld. Advocate, on behalf of the appellant, submits that the goods were being manufactured using the brand names which were not belonging to any person and was 'free floating' brand name. Affixing of such brand names on the manufactured plywood/blockboard by the appellant would not dis-entitle them from the benefit of SSI exemption clarified by CBEC No. 52/94-CX dated 01.09.94, wherein it is stated that if a brand name is not owned by any person, the use thereof will not deprive the benefit of small scale exemption scheme. Further, reliance were placed on ration laid down in the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption on account of using some 'brand name' on their manufacture products at the behest of buyer. It is also seen from the record that the brand names which have used by the appellant is not belonging to them but held by the other persons, the identity of which has not been established by the department. In such circumstances, these brand names are required to be treated as 'free floating brand names' and therefore can been used by any person. We have perused the various case laws cited by the appellant regarding use of free floating brand names. This issue has also been clarified by CBEC vide its circular dated 01.09.94 (Supra). We reproduce the relevant portion of notification no. 08/03 regarding the brand name which is explained at e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whom it belongs to, lies on the Revenue and is required to be proved before the benefit of small-scale exemption notification could be denied. In the instant proceedings, the Revenue has not established the owners of the brand name in question. As such, the definition of brand name as appearing in the small-scale exemption notification that such brand name or trade name must indicate a connection in the course of trade between such specified goods and person using such names or marks, does not get satisfied in as much there is no such person using such names so as to indicate a connection in the trade. We, further, note that it is recognised even by the Board that some of the brands floating in the marks did not belong to any particular ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner (Appeals) that 'Amba' and 'Ambalica' are common names being used in the industry, without any specific person owning the same, in which case Board's circular would apply. The said circular of the Board is to be effect that for denying the benefit of SSI notification, it is necessary that the trade name must indicate a connection or identity of that person. Unless the connection between trade name and the person with whom that trade name is to be identified, is established, the requirement of brand name or trade name as provided for in the notification will not be satisfied. It is further observed in the said circular that in respect of lock, units making lock are bearing the same name or mark even though there is no person ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
