Custom, Excise & Service Tax Tribunal
M/S. Riat Machine Tools Pvt. Limited vs Commissioner Of Central Excise & St, ... on 4 January, 2018
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL SCO 147-148, SECTOR 17-C, CHANDIGARH 160 017 COURT NO. I Appeal No. E/792,793/2010-DB Date of Hearing/ Decision : 04.01.2018 [Arising out of Order-in-Appeal No. OIA- 15/LDH/2009 dated 14.01.2010 passed by the Commissioner (Appeals) Central Excise & ST, Ludhiana] M/s. Riat Machine Tools Pvt. Limited : Appellant Shri Davinder Singh, Director vs. Commissioner of Central Excise & ST, Ludhiana : Respondent
Appearance:
Shri Vikrant Kackaria, Advocate for the Appellant(s) Shri A.K. Saini, A.R. for the Respondent(s) CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. Devender Singh, Member (Technical) Final Order No. 60019-60020 / 2018 Per : Ashok Jindal The appellants are in appeal against the impugned order wherein the benefit of SSI exemption as per Notification No. 08/2003-CE dated 01.03.2003, has been denied on the premise that appellants are using the brand name of another person.
2. The brief facts of the case are that, one M/s. Riat Machine Tools (M/s. RMT for short) was incorporated in the year 1970 having two partners namely, Shri Davinder Pal Singh and Shri Navrattan Singh. They got registered the brand name as RIAT for the product manufactured by them with the trade mark registering authority, under the Trade Merchandise Act. With effect from 01.04.1995, the said business of partnership firm was taken over by M/s. Riat Machine Tools Pvt. Limited i.e. the present appellant who was having two Directors namely, Shri Navrattan Singh and Shri Davinder Pal Singh earlier the partners of M/s. RMT. The registration certificate also amended to that effect showing the appellants have started using the brand name RIAT with effect from 01.04.1995. In the year 2002, the whole assets of RMT were taken over by the appellant and they were clearing the goods under the brand name RIAT. On 17.06.2006, an assignment deed was also executed by RMT in favour of the appellant transferring the brand name to them. After investigation, show cause notice dated 05.05.2008 was issued to the appellants to deny the benefit of Notification No. 8/2003-CE (ibid), on the premise that as the appellant are using the brand name of M/s. RMT therefore, they are not entitled to avail the benefit of the above said notification. Therefore, demands of duty was proposed for the period 2003 to2008, for the clearances made by the appellant without payment of duty. The matter was adjudicated, demand of duty along with interest was confirmed by denying the benefit of exemption notification and penalties were also imposed on both the appellants. Aggrieved from the said order, the appellants are before us.
3. Ld. Counsel appearing on behalf of the appellant submits that M/s. RMT was a partnership firm and the appellant has taken over the same business and partners of M/s. RMT and the appellants are the same. Therefore, the appellant are using their own brand name and therefore, it cannot be termed that the appellants are using the brand name of another person. In that circumstances, the benefit of exemption notification cannot be denied to them. To support his contention, he relied upon the decision of this Tribunal in the case of M/s. Basant Presses (India) vide Final Order No. A/61066/2017. He also relied on the decision of this Tribunal in the case of Elex Knitting Machinery Company vs. CCE, Chandigarh 2003 (158) ELT 499 (Tri. Del.), Elex Industries vs. CCE, Chandigarh 2003 (158) ELT 602 (Tri. Del.) which has been affirmed by the Hon'ble Punjab & Haryana High Court as well as by the Honble Apex Court reported as 2012 (283) ELT A-18 (SC). He also relied on the decision of this Tribunal in the case of CCE & ST, Indore vs. Sanjay Agarwal 2017 (345) ELT 568 (Tri. Del.) and Famcom Rubber Products (I) Pvt. Ltd vs. CCE & Cus. Delhi 2016 (343) ELT 689 (Tri. Del.).
4. In alternate, it is his submission that the fact of using brand name of M/s. RMT by the appellants was in the knowledge of the department with effect from 01.04.1995 as they have got amended their registration certificate and were filing the copy of invoices showing use of brand name RIAT along with RT-12 returns. He further submits that as their turn-over remains below the exemption limit therefore, on 30.11.2000, they surrendered the registration certificate considering the fact that they are using their own brand name RIAT for their clearances. It is also his contention that as for abundant precaution, they got the assigning deed in their favour dated 17.06.2006, issued by M/s. RMT for using the above said brand name and the same was effective from 17.06.2006. Therefore, extended period of limitation cannot be invoked against them. Further, for the period within limit, they were the brand owner of the said brand name. Therefore, the proceedings against the appellants are not sustainable.
5. On the other hand, ld. AR reiterates the findings of the impugned order and supported the same.
6. Heard both sides and considered the submissions. We find that following two issues emerges for our consideration that;
(a) Whether the appellants are entitled to avail benefit of exemption Notification No. 08/2003-CE dated 01.03.2003 using their own brand name or not?
(b) Whether extended period limitation can be invoked.
As regards issue (a) whether the appellants are entitled to avail benefit of exemption notification, we find that M/s. RMT, was the owner of brand name RIAT and Shri Navrattan Singh and Shri Davinder Pal Singh were the partners of M/s. RMT. These two partners of M/s. RMT are the Directors of appellant firm. Therefore, in the light of decision of this Tribunal in the case of M/s. Basant Presses (India) (supra) wherein the Tribunal observed as under:-
6. The sole ground for filing this appeal by the Revenue is that the appellant is using brand name of other person and the case laws relied upon by the ld. AR also says so. The facts of this case are altogether different from the case law relied upon by ld. AR. In fact, in this the facts before us are that the respondent is a proprietary ship concern, who is using the brand name of a partnership concern, where the proprietor of the respondent firm is a partner. Therefore, the fact of this case are identical to the facts in the case of Elex Industries (supra), wherein this Tribunal has held that if the person who is using the brand name of another firm where he is a Director, Partner or Proprietor then it cannot be said that the assessee is using the brand name of other person. The said view of the Tribunal has been affirmed by the Honble Apex Court. In that circumstance, in this case, the facts stated hereinabove have not been disputed and therefore, we hold that ld. adjudicating authority has rightly allowed the benefit of exemption notification No. 8/2003-CE dated 01.03.2003 to the respondent. Consequently, no duty demand is sustainable against the respondent. In view of the above, on merits, we hold that the appellants are entitled to avail benefit of exemption Notification No. 08/2003-CE dated 01.03.2003 as they are using their own brand name.
As regards issue (b) whether extended period of limitation can be invoked, we take note of the fact that on 31.05.1995 the registration certificate was amended with effect from 01.04.1995 wherein it was in the knowledge of the Revenue that appellants are using the brand name RIAT which is owned by M/s. RMT. Therefore, it cannot be held that appellant has suppressed any material fact from the Revenue to invoke extended period of limitation. In that circumstances, we hold that extended period of limitation cannot be invoked.
7. We further take note of the fact that on 17.06.2006 an assignment deed was entered into between M/s. RMT and the appellant wherein the M/s. RMT assigned brand name RIAT to the appellants from 17.06.2006 and the appellants are owner of brand name and using the same correctly. Therefore, no demand is sustainable against the appellants.
8. In view of the above analysis, we answer both the issues in favour of the appellants. Accordingly, the impugned order is set-aside and the appeals are allowed with consequential relief, if any.
(Order dictated and pronounced in the court) Devender Singh Member (Technical) Ashok Jindal Member (Judicial) KL 6 Appeal No. E/792,793/2010