TMI Blog2004 (2) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... s Pvt. Ltd. (PBMPL) cleared under various Central Excise invoices issued from these 2 factories, it was observed that both the units were availing SSI exemption and the goods of both factories were affixed with same brand name/labels/mono grams "PETHE" in a particular style. On detailed enquiry, the Central Excise Department felt that the appellant had manufactured branded goods using "PETHE" logo/monogram and availed exemption at the concessional rate of duty under Notification No. 1/93-C.E., dated 28-2-1993 as amended. Accordingly, a show cause notice was issued on 20 April, 1998 to the appellants proposing denial of SSI exemption, demanding differential duty of Rs. 37,10,607/- proposing confiscation of the seized goods, demanding interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormation relating to the usage of common brand name in respect of product manufactured by M/s. PBMPL was not disclosed in the Central Excise in C.L. and the gate passes or Central Excise invoice and there is an element of suppression involved for the purpose of wrongly availing the exemption and therefore extended period was invoked. 3. The ld. Counsel of the appellants stated that the appellant's factory was started in 1981 as Guhagar, district Ratnagiri manufacturing :- (a) Electrical motors falling under CH. Heading 85.01 (b) Electromagnetic Brakes and clutches and parts falling under Ch. Heading 85.05 (c) Brake motors and Thrustors falling under Ch. Heading 8543.10. 4. The other unit, M/s. PETHE Engg. Pvt. Ltd. at Lonavala sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same exemption. He referred and relied on the judgment in the case of Astra Pharmaceuticals (P) Ltd. (Supra). In support of his submission that the word "PETHE" is neither brand name nor trade name but only house mark or family name. 7. The ld. Counsel further referred to CBEC Circular No. 52/52/94-CX, 1-9-1994. As per this circular the brand name is not owned by a particular person, the use thereof will not deprive a unit of the benefit of SSI exemption. The Department has not proved that the "PETHE" word belongs to any particular person and therefore as per the instructions of the CBEC, the appellants are entitled to Notification No. 1/93. He further stated that the appellants are manufacturing electrical motors and brake motors and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - (i) Chemphar Drugs Liniments reported in 1989 (40) E.L.T. 276 (S.C.) (ii) Padmini Products v. CCE, reported in 1989 (43) E.L.T. 195 (S.C.). 9. It was held in these judgments that mere failure or negligence of the manufacturer to take out licence or pay duty when there was scope for doubt that goods were not dutiable, extended period will not be applicable and that for applicability of extended period something positive other than mere negligence or failure on the part of manufacturer is required to be proved. 10. The ld. DR strongly contended that the reasoning adopted by the Commissioner for confirmation of the demand and imposing penalty etc. are correct and that the appeal should be dismissed. 11. We have carefully consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having different models, different capacities, different usage and different buyers and therefore these goods cannot be considered as identical. We have perused the classification list and the model nos. given and detailed description alongwith the classification list. Therefore, we find that relying upon the judgment in the case of CCE, Chandigarh v. Fine Inds. reported in 2002 (146) E.L.T. 53 (Tri. - LB), we hold that the appellants are entitled to SSI exemption, as the goods manufactured by both the appellants and other unit are not identical. 13. We do not go into the issue of limitation urged by the ld. Counsel as we have held that the appellants are entitled to SSI exemption on merits. 14. Therefore, in the result the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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