TMI Blog2003 (5) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... r the product; that they, therefore, entered into an agreement on 29-2-92 with M/s. BEC Fertilizers, Appellant No. 2, for the purpose of marketing of their products; that the benefit of Notification No. 175/86-C.E., dated 1-3-86 and Notification No. 1/93-C.E., dated 28-2-93 has been denied to the Appellant No. 1 on the ground that the goods are affixed with the brand name of M/s. BEC Fertilizers; that the brand name restriction is not applicable in view of the decision of the Larger Bench of the Tribunal in the case of CCE, Chandigarh v. Fine Industries, 2002 (146) E.L.T. 53 (Tri. - LB) = 2002 (53) RLT 398 wherein the Tribunal has held as under :- "The highlighted observations of the Apex Court clearly lay down that, to attract the mischief of para 7, the goods manufactured by the SSI unit and cleared under the brand name of another person should be identical to that manufactured by the brand name owner, in which event only the goods could become indistinguishable in the market from those manufactured by the brand name owner. We have already noted that Para 7 of Notification No. 175/86-C.E. considered by the Apex Court is pari materia to Para 4 of Notification No. 1/93-C.E., whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods and clearing the same under his brand name/trade name." The learned Advocate mentioned that as the Revenue has not discharged this burden cast upon it, the benefit of exemption of Notification Nos. 175/86 and 1/93 is available to the Appellant No. 1. 3. He, further, submitted that both Appellants No. 1 and 2 are separate entities distinct from each other and Appellant No. l sells their products to Appellant No. 2 and receive the payment as per the agreement; that the dealings between them are at arm's length and are on principal to principal basis and hence they cannot be treated as related person and the value declared by BECO Chemicals is normal price and is not influenced by extra commercial consideration; that they have no mutuality of interest; that there is no evidence to established the mutuality of interests between the two appellants; that it is settled law that a mere commercial contract between the independent parties for purchase and sale of goods will not mean that they have interest in the business of each other; that it is also settled law that even if the assessee sells the entire stocks of goods manufactured to the raw material supplier, whose brand name is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed the brand name; that this classification list was approved by the proper officer after due verification; that they were filing RT-12 returns every month which were duly assessed by the proper officer; that it is thus clear that the incidence of manufacture and clearance of product was known to the Revenue all the time; that none of the ingredients such as suppression, wilful mis-statement, etc., mentioned in proviso to Section 11A(1) of the Act exists in the instant case. Reliance has been placed on the decision in Tata Iron Steel Co. Ltd. v. UOI, 1987 (32) E.L.T. 676 (Pat.), Hindustan Electo Graphites Ltd. v. UOI, 1990 (50) E.L.T. 15 (M.P.) and Srinivasan Cables (P) Ltd. v. CCE, Hyderabad, 2000 (126) E.L.T. 1057 (T). Finally he submitted that there is no finding in the impugned Order in respect of issue of invoking proviso to Section 11A(1); that further since the demand itself is time barred, provisions of Section 11AA and Section 11AB for demanding interest and Section 11AC for imposing penalty are not attracted; that moreover the provisions of Sections 11AB and 11AC are not retrospective in operation and the penalty for the period prior to 28-9-96 cannot be imposed under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st filed by them; that this vital fact, known to the Appellant No. 1 was suppressed by them from the Department; that the Commissioner has given his findings in the impugned Order for invoking the provisions of proviso to Sectiona 11A(1) of the Act; that penalty is thus imposable on both the Appellants. 7.1. We have considered the submissions of both the sides. Notification No. 175/86-C.E. (or Notification No. 1/93) provides exemptions from payment of duty in respect of excisable goods manufactured by a small-scale unit subject to fulfilment of the conditions specified in the Notification. Para 7 or Para 4 of the respective notification provides that the benefit of the Notification shall not be available if the goods are affixed with the brand name (registered or un-registered) of another person. It has not been disputed by M/s. Beco Chemicals (P) Ltd. that the plant growth regulators manufactured by them are bearing the brand name 'Anand' which belongs to M/s. BEC Fertilizers. The contention of the learned Advocate for the Appellants is that the goods manufactured by Brand name owner is Single Super Phosphate which is a fertilizer having different chemical composition, raw mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ful consideration of the matter in all its relevant aspects, we are of the view that the benefit of small-scale exemption under Notification No. 175/86-C.E., dated 1-3-86 (as amended) and Notification No. 1/93-C.E., dated 28-2-93 (as amended) was not available to the specified goods where the manufacturer affixes the said specified goods with the brand name or trade name of a foreign person and of a non-manufacturing trader. The reference is answered accordingly." In the present matter M/s. BEC Fertilizers are dealing with the plant growth regulators. Thus the Appellant No. 1 has used the brand name of another person who is a non-manufacturing trader as far as plant growth regulator is concerned. The Larger Bench in Namtech case has observed that "The expression used in the relevant provisions was 'another person.' The expression 'person' is wider than the 'manufacturer'…... It has to be assumed that the Legislature has used the expression 'person' purposely and the said expression cannot be detached from the context." Accordingly we hold that the Appellants No. 1 are not eligible to avail of the benefit of Notification Nos. 175/86 and 1/93 as the goods manufactured by them bear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as extra commercial considerations so as to constitute mutuality of interest. In the case of Beacon Neyrpic Ltd. v. CCE, 2001 (133) E.L.T. 590 (T) the Tribunal did not find any merit in Revenue's contention of 100% sales being made to 60% stake holder of the assessee-company, in the absence of mutuality of the interest of the assessee-company being proved in the business of the holding company. Thus we hold that both the Appellants are not related persons. 10. We agree with the learned DR that the extended time-limit is applicable for demanding the duty in view of the fact that they have suppressed the fact of using the brand name of another person on their products. The fact of using brand name of another person was neither mentioned by them in the classification list nor in RT-12 returns filed by them. We, however, agree with the learned Advocate that provisions of Section 11AB and Section 11AC of the Central Excise Act would not be applicable to the demand of duty pertaining to the period prior to the insertion of these two sections in the Central Excise Act, i.e. 28-9-1996. This has been the view of the Apex Court in CCE, Coimbatore v. Elgi Equipments Ltd., 2001 (128) E.L.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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