Custom, Excise & Service Tax Tribunal
Commissioner, Central Excise & Service ... vs M/S Harsh Industries on 21 May, 2015
In The Customs, Excise & Service Tax Appellate Tribunal
West Zonal Bench At Ahmedabad
Appeal No.E/754/2007
[Arising out of OIA No.98/2007(Ahd-I), dt.13.02.2007, passed by Commissioner (Appeals) Central Excise & Service Tax, Ahmedabad]
Commissioner, Central Excise & Service Tax,
Ahmedabad-I Appellant
Vs
M/s Harsh Industries Respondent
Represented by:
For Appellant: Shri K. Sivakumar, Authorised Representative For Respondent: Shri Deepak Kumar, Consultant For approval and signature:
Honble Mr. P.K. Das, Member (Judicial) Honble Mr. H.K. Thakur, Member (Technical)
1. Whether Press Reporters may be allowed to see the No Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen the order?
4. Whether order is to be circulated to the Departmental Yes authorities?
CORAM:
HONBLE MR. P.K. DAS, MEMBER (JUDICIAL) HONBLE MR. H.K. THAKUR, MEMBER (TECHNICAL) Date of Hearing/Decision:21.05.2015 Order No. A/10634 / 2015 dt.21.05.2015 Per: P.K. Das The Revenue filed this appeal against the order of the Commissioner (Appeals), whereby the Adjudication order was set aside.
2. The relevant facts of the case, in brief, are that the Respondents were engaged in the manufacture of Power Driven Water Pumps. A Show Cause Notice dt.08.02.2006 was issued, proposing demand of duty alongwith interest and to impose penalty for the period 01.04.2003 to November 2005 on the ground the Respondents wrongly availed SSI exemption and cleared the goods bearing the brand name of the other person. The Adjudicating authority confirmed the demand of duty alongwith interest and imposed penalty. The Commissioner (Appeals) set aside the Adjudication order.
3. The learned Authorised Representative on behalf of the Revenue submits that the Respondents had not produced the Deed of Assignment for use of brand name during the investigation. It was only placed by them in reply to the Show Cause Notice. It is further submitted that the Respondents shown this amount as royalty in the Income Tax return, which was revised after investigation. He further submits that the Respondent applied for change of ownership to the Trade Mark authority. It is his contention that this document cannot be accepted as they have not taken place at the time of investigation by the Department. So, the demand of duty is liable to be upheld. It is also submitted that one of the partner of the Respondent is party of brand name holders.
4. On the other hand, the learned Counsel on behalf of the Respondent submits that Shri Pravinbhai Manilal Ajmera, Proprietor of M/s Harsh Traders in his statement dt.12.01.2006, stated that M/s Harsh Traders entered into Deed of Assignment with M/s Harsh Industries to assign and use the trade mark in favour of the respondent company. So, the Respondent disclosed during investigation. It is further submitted that the Income Tax authority had accepted the revised return and the Central Excise department cannot go against the Respondent. He further submits that Deed of Assignment was verified by the investigating officer, which is evident from the cross examination of the concerned officer. The main argument of the Respondent company is that trade mark authority accepted the brand name in favour of the Respondent from 28.09.2000. In this context, the learned Counsel placed a certified copy of the trade mark certificate.
5. After hearing both the sides and on perusal of the records, we find force in the submission of the learned Counsel on behalf of the Respondent. We find that Trade Mark authority by Order No.TM-46/70/381, dt.31.12.2008, certified that M/s Harsh Industries, amongst others are registered as subsequent proprietor of Trade Mark HARSH as from 28.09.2000 by virtue of Deed of Assignment dt.31.03.2001. As the Trade Mark authority accepted that Respondent is proprietor of Trade Mark HARSH from 28.09.2000, then the demand of duty for the period 2003-04 to 2004-2005 on this ground is not sustainable. We have also noticed that the submissions of the Revenue before the Tribunal were refuted by the Respondent. Hence, there is no need to discuss all these things.
6. In view of the above discussion, we do not find any reason to interfere the order of the Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is rejected and uphold the impugned order passed by the Commissioner (Appeals).
(Dictated & Pronounced in Court)
(H.K. Thakur) (P.K. Das)
Member (Technical) Member (Judicial)
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