TMI Blog2021 (8) TMI 902X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that extended period cannot be invoked in this case, where the issue is purely an interpretational. The matter remanded back to original authority to allow the CENVAT Credit as admissible, of the duty paid by the appellants on these goods and other inputs and input services received by them, subject to production of the requisite duty paying documents - appeal allowed by way of remand. - Excise Appeal No. 1730-1731 of 2011 - A/86687-86688/2021 - Dated:- 12-8-2021 - MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) AND DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Shri Anil Balani, Advocate, for the Appellant Shri Sanjay Hasija, Superintendent, Authorised Representative for the Respondent ORDER These appeal is directed against order in appeal No PKS/99-100/MIII/2011 dated 06.09.2011 of Commissioner of Central Excise (Appeals), Mumbai III. By the impugned order, the Commissioner (Appeals) has rejected the appeals filed by the appellant against order in original No 303/Adj/KDN/RKD/2010- 11 dated 28.02.2011 of the Deputy Commissioner Central Excise Kanjur Division, Mumbai III holding as follows: ORDER (i) I confirm the duty of ₹ 3,34,551/- (Rupees Thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest and to impose penalty under Section 11AC read with Rule 25. It was also proposed to impose penalty on Shri Israni. The demands and proposals of both the show cause notices were confirmed vide order dt. 21.12.2009. 2.5 Pursuant to the Show Cause Notice dated 02.01.2008, for the subsequent period range officer issued Show cause Notice dated 01.06.2010 for the subsequent period. 2.6 The show cause notice dated 01.06.2010 was adjudicated by the Deputy Commissioner as per the order referred to in para 1, supra and upheld by the Commissioner (Appeal) as per the impugned order. 2.7 Aggrieved by the impugned order, appellants have filed these appeals 3.1 We have heard Shri Anil Balani, Advocate for the Appellant and Shri Sanjay Hasija, Superintendent, Authorized Representative for the revenue. 3.2 Arguing for the appellants, learned counsel submits that- they are engaged in the trading of various imported goods which are purchased by them from various importers. That the said goods are brought to their godown and packing is not changed but for additional safety in transport and to prevent damage during transit and also as per requirement of postal authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that M/s. Tetragon Chemie (P) Ltd., Bangalore has permitted them to use this name. That permission shall not make the respondent owner of the brand name. It is thus, clear that the brand name belongs to M/s. Tetragon Chemie (P) Ltd., Bangalore, which brand name is allowed to be used by the respondent and in these circumstances, following Explanation 8 to the Notification No. 175/86, dated 1-3-1986 would clearly become applicable. This explanation defines brand name and reads as under :- Explanation VIII - Brand name or trade name shall mean a brand name or trade name, whether registered or not, that is to say a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person. Delhi bench of Tribunal has in the case of Vee Gee Faucets P Ltd [2010 (259) ELT 273 (T-Del)] held that 11. The notification explains the term brand name or trade name to mean a brand name or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.4 In rejoinder learned counsel submits that- In case of Ritzbury India (P) Ltd [2012 (283) ELT 92 (TChennai)] after considering the decision of Hon ble Apex Court, the tribunal held as follows: The decision in Vee Gee Faucets referred by the learned Authorized Representative is distinguishable, as the registration of the brand name in that case was retrospective. The issue should be considered in light of Hon ble supreme Court in case of Primella Sanitary Products and Convertech Equipment. Following the decision in their case the appeal should be allowed. In alternate they have paid the entire duty on these goods at the time of clearance of the goods from Custom as countervailing duty which should be available to them as CENVAT Credit and demand should be made only after offsetting the same against the admissible CENVAT Credit. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 Tribunal has in the case of the Appellants vide the order referred by the counsel allowed the appeal in their favour, holding as follows: 6. We have carefully considered the submission made by both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period September' 2003 to June' 2007 by invoking extended period of limitation. We find that as apparent from the investigation there is no instance showing that the Appellant had intention to evade payment of duty. We find that the Appellants were in ignorance of schedule Third to the Central Excise Tariff (sic). It was only during investigation that the Appellant realized that their activity of packing of goods and affixing labels would fall into the category of manufacture as per Section 2(f)(iii) and third schedule. Further the sales record and all business transactions were recorded by them in transparent manner. Moreover, the advertisement and marketing of products in question were very much on public domain through television. As per this undisputed fact, we find that there is no suppression of fact on part of the appellant. Therefore, entire demand being under extended period could not have been confirmed under the proviso to Section 11A. Thus, in absence of any contumacious conduct on the part of the Appellant as well as in absence of any intention to evade payment of duty, we hold that the demands made against the Appellant M/s Telebrands is hit by limitation of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at process undertaken by them amounts to manufacture. While on principle, the said ground may merit consideration, yet, the scheme of cenvat credit mandates preparation and maintenance of some vital documents/ registers. The Appellants No 1 has not produced such documents or have not confirmed maintenance of such registers/ documents. As such, this request of them, cannot be considered at this stage. 4.6 Admittedly the goods in the present case are the imported goods and would have been cleared on the payment of countervailing duty, determined on the basis of the declared Retail Selling Price. If the goods at the time of clearance have suffered the countervailing duty on the basis of Retailing Selling Price and as per Section 4A, there cannot be any further demand, if the benefit of CENVAT Credit is allowed to the appellant. In our view without even referring to admissibility of the SSI Exemption Notification, this appeal can be decided by allowing the CENVAT Credit to the appellant subject to the requisite duty paying documents against which the CENVAT credit is claimed. Tribunal has in the Appellants own case, held in favour of admissibility of the CENVAT Credit to the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
