TMI Blog2003 (4) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... oes and sports shoes; that they came into existence in the year 1990; that as they are a small-scale unit, they are availing the benefit of Notification No. 1/93-Central Excise, dated 1-3-93 and its successor notifications; that they sell their products affixed with the brand names, Sundar Climbers, Sundar Dewana, Sundar Mastana, Sundar Raja, Sundar Naresh, Sunder Don, etc.; that the Additional Commissioner, under Order-in-Original No. 14/2000 dated 30-3-2000, disallowed the benefits of small-scale exemption notification, confirmed the demand of duty and imposed penalty on both the Appellants besides confiscating seized goods plant and machinery holding that the goods were sold bearing the brand memo 'Sundar belonging to M/s. Sada Ram Son ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey have sold the impugned goods under their own brand name, the exemption under the notification cannot be denied. He relied upon the decision in the case of VI John Beauty Tech v. Commissioner of Central Excise, New Delhi - 2002 (143) E.L.T. 148 (T) and Commissioner of Central Excise, New Delhi-II v. ACE Auto Co. Pvt. Ltd. - 2003 (106) ECR 280 (T); that in ACE Auto Co. case, the Appellants goods bear the brand name 'Tata Ace' and the Tribunal has held that the benefit of small-scale exemption notification will be available to the Appellants as there is no material to prove that the brand name belongs to another person. 4. The learned Advocate also contended that the entire demand is barred by limitation as they had filed necessary intima ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a colourable device to save themselves from the demand of duty. He, further, submitted that as per definition of Brand name in Notification, any 'name' 'mark', 'symbol', 'monogram', 'label', 'signature' or 'invented word' or writing which provides a distinguishable identity to the goods will be the brand name; that thus the word 'Sundar' is a brand name as per the definition of brand name given in notification; that as the Appellants were using the brand name of another person on their goods, the benefit of SSI notification is not available to them. 6. We have considered the submissions of both the sides. The benefit of SSI notification is not available to a small-scale unit if the goods manufactured by it bear the brand name or trade n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem. Revenue has not rebutted the said contention of the Appellants. Thus the Revenue has not succeeded in establishing that the goods manufactured by the Appellants were bearing the brand name of another person during the relevant period. 7. The Appellants have also contended that they sell their shoes bearing their own brand names, Sundar Climbers, Sundar Dewana, Sundar Mastana, Sundar Naresh, etc. in the course of manufacture, the names like Sundar Dewana, etc. are put on the sole when it is moulded; the in-sole is affixed with the respective brand names like "Climbers", Kishore", "Mastana", etc.; on the upper of shoes, the respective brand names like "Climbers", etc. are prominently affixed and the cartons, in which the shoes are pack ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the specified goods are bearing the brand name of another person. It is not the case of the Revenue that "Tata Ace" is the brand name of another person. The very fact that there is no material to prove that the brand name, which the excisable goods manufactured by the respondents bear, belongs to another person, the mischief of Para 4 of the Notification No. 1/93 will not be attracted." 8. In view of this, we hold that the Revenue has not succeeded in showing that the goods manufactured by the Appellants are bearing the brand name of another person. Thus the mischief of Para 4 of Notification No. 1/93-C.E. and successor notification is not attracted. Accordingly, we set aside the impugned order and allow both the appeals. - - Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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