TMI Blog2022 (9) TMI 1055X X X X Extracts X X X X X X X X Extracts X X X X ..... and logo belonging to Ramee Guestline Hotel. If that is the case, then the appellants were clearing the goods under the brand name and logo held by them - they cannot be hit by clause 3(b) of Notification No.8/2003. Appeal allowed - decided in favor of appellant. - Excise Appeal No. 1503 of 2012 - FINAL ORDER NO. A/85861/2022 - Dated:- 16-9-2022 - MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri Vinod Kumar, Company Representative, for the Appellant Shri P.K. Acharya, Superintendent, Authorised Representative for the Respondent ORDER This appeal is directed against Order-in-Appeal No. BR(50) MV/2012 dated 27.08.2012 passed by the Commissioner of Central Excise (Appeals), Mumbai-I. By the impugned order, the Commissioner (Appeals) upheld the Order-in-Original No. 12/172/ACADH/09 dated 30.06.2009 of the Assistant Commissioner of Central Excise, Mumbai-V, holding as follows:- ORDER I. The goods viz. cakes, pastries and other prepared foods, manufactured and cleared by M/s. RHL should be classified under Chapter subheading Nos. 19059010 (erstwhile CHS 1905.20) of Central Excise Tariff Act, 1985, attracting Central Excise duty at the prevalent rate, at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Education Cess amounting to Rs.340/- and higher education cess of Rs.170/- on the goods valued at Rs. 2,12,216/-( two lakhs twelve thousand two hundred and sixteen only), manufactured and cleared during the period from April 2008 to Dec 2008, without payment of appropriate Central Excise Duty. as detailed in Annexure - A to the SCN, should not be demanded and recovered from them under the provisions of Section 11A(1) of the Central Excise Act, 1944; iv. the interest, at the appropriate rate, on the total amount of Central Excise Duty determined to be payable, should not be demanded and recovered from them for the relevant period under the provisions of Section 11AB of the Central Excise Act, 1944; v. penalty should not be imposed upon the said Noticee under Rule 25 of the Central Excise Rules, 2002. 2.2 This show cause notice has been adjudicated by the Assistant Commissioner as per the order-in-original referred in para 1 above. Appeal filed by the appellant against the order-in-original has been dismissed by the Commissioner (Appeals) by the impugned order. Hence this appeal. 3.1 I have heard Shri Vinod Kumar, Company Representative, for the appellant and Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it appears that M/s. Ramani Hotels Ltd. (Ramee Guest Line Hotels), having PAN No. AAACR5513J, and operating under the name Style of Ramee Guest Line Hotels situated at 462 AB Nair Road, Juhu Mumbai 400 049 (herein after for sake of brevity referred to as M/s. RGLH ), during the period April 2008 to Dec, 2008, have manufactured the Branded Excisable goods, viz. Cakes Pastries, etc., classifiable under CSH No. 19059010 (Erstwhile C.S.H 1905.20) of Central Excise Tariff Act, 1985, with the Brand Name Logo belonging to RAMEE GUESTLINE HOTEL (hereinafter referred to as the 'said goods' ), totally valued at Rs.2,12,216/-(Rupees two lakhs twelve thousand two hundred sixteen only), and cleared the same without payment of Central Excise Duty, totally amounting to Rs. 17,487/-(Rupees seventeen thousand four hundred eighty seven only) leviable thereon as detailed in Annexure-A' to this Notice, and have thereby contravened the provisions of Section 6 of the Central Excise Act, 1944 read with Rule 9 of Central Excise Rules 2002, Section 4 of Central Excise Act, 1944 read with Rule 6, Rule 4 read with Rule 8, Rule 11 and Rule 12 of the Central Excise Rules, 2002, in as mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present proceeding too. Besides, the department also relies on the worksheet of production and clearance furnished by the noticee, under their letter dated ibid 10.10.2006 . 4.3 From the above, it is quite evident that this show cause notice is based on investigation made for earlier show cause notice for the period April 2000 to March 2005 issued to the appellant. Further, para 3 of the annexure specifically states that there is no change in products manufactured and cleared and their manufacturing and clearing procedures. The department relies on the earlier investigation conducted and records obtained during the earlier proceedings. This clearly shows that the present show cause notice which has been issued is just in continuation of the earlier show cause notice without any new facts being brought on record. The show cause notice of 2005 was finally concluded by order-in-appeal dated 21.07.2009 and in paras 8 to 15 the Commissioner (Appeals) has specifically concluded as follows:- 08. In this case the destine Hotels belongs to the app and not other person as the appellant engaged in the business of hotel providing boarding, lodging and conference facilities. They ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brand name used by the appellant, in fact is their own brand as they (Ramani Hotels Ltd.) bas branches at Banglore, Tirupati and Juhu at Mumbai and all the three units put together are called Ramee Guestline Hotels which is their group name and not the brand/trade name of any other person and that they do not get any fees in terms of royalty, marketing licence or any other remuneration and to this effect they filed an affidavit dated 25.5.2007, signed by Assistant Finance Controller of the firm also and copy of the same submitted to the department. 12. Further, it is seen from the copies of balance sheets for the financial year 2001-02, 2002-03 and 2003-04 submitted by the appellant at the time of personal hearing that they have consolidated balance sheet in the name of M/s.Ramani Hotels Ltd. The documents/schedules attached with the copy of the said balance sheet incorporated the name Ramani Hotels Ltd. as well as Ramee Guestline Hotels situated at Tirupati, Juhu Attibele, Banglore which proves that Ramee Guestline Hotels is the name of the their group. From the balance sheet it appears that M/s. Ramee Investment was formed only in May 2002, wherein the investment com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t appellant have entered into an arrangement with Ramee Guestline chain of hotels, wherein they have been allowed to use the Brand name and logo of Ramee on the packing material used for packing of cakes and pastries. Nothing is brought on record by the appellant to prove that Ramee Guestline chains of Hotels are the owners of M/s Ramani Hotels Ltd or vice versa. The appellant have simply placed reliance on the earlier Order in Appeal No. SB(46 to 48) 46 to 48/MV/2009 dated 21.07.2009 of Commissioner (Appeals) which has held that the brand name belongs to the appellant. Perusal of the said Order in Appeal reveals that appellant has not disclosed full facts during subject Order in Appeal, hence new facts have emerged. 4.5 However, this finding recorded is contrary to the facts as stated in the show cause notice and the annexure to it. Hence para 5 distinguishing the case from the earlier order of the Commissioner (Appeals) cannot be sustained. 4.6 Notification No. 8/2003-CE dated 01.03.2003 provides as follows:- 3. For the purposes of determining the aggregate value of clearances for home consumption, the following clearances shall not be taken into account, namely: ( ..... 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