Customs, Excise and Gold Tribunal - Tamil Nadu
Malabar Oxygen Company (Pvt) Ltd. vs Commr. Of C. Ex. on 5 February, 1999
Equivalent citations: 2000(119)ELT648(TRI-CHENNAI)
ORDER S.L. Peeran, Member (J)
1. In the stay application the applicant is seeking waiver of pre-deposit totalling to Rs. 19,39,392/- as against a total demand of Rs. 25, 39, 392.96 and a penalty of Rs. 1,92,906/- on the company and Rs. 15,000/- on the Director. The Commissioner (Appeals) has dismissed three appeals of the appellants under proviso to Section 35 F of the Act on the ground that they have not fully complied with the Stay order passed by him wherein he had directed them to pre-deposit Rs. 12,00,000/-.
2. Ld. Advocate submits that they have already pre-deposited Rs. 6,00,000/- as against total pre-deposit of Rs. 12,00,000/- directed by the Com- missioner (Appeals). It is his contention that the appellants have got a very strong prima facie case and also they are facing with severe financial hardship. Therefore, he seeks that the Order of the Commissioner for pre-deposit of Rs. 12,00,000/- be modified and Rs. 6,00,000/- already pre-deposited by them be accepted and a direction be given to the Commissioner to dispose the matter on merits. It is his contention that the appellants are Small Scale Industries and are entitled to the benefit of Notification Nos. 175/86 and 1/93. They are manufacturing Oxygen and are only utilizing the Cylinders supplied by the Southern Gas Ltd. and 25% supplied by other units. He points out that the benefit of notification has been denied solely on the ground that the Cylinders supplied by Southern Gas Ltd. has a marking "SG/SGL" and therefore, the clearance have been clubbed while the department has not proceeded to club the clearnances of 25% supplied by other units to whom the appellants are supplying in such cylinders independently. He further points out that the marking SG/SGL has been impressed on the Cylinders in terms of the Gas Cylinder Rules 61 and the same is not a trade name or brand name under the Trade Mark Act. The goods should have a separate brand name/Trade name and presently the goods are Oxygen and it does not have any trade or brand name. The appellants are not manufacturing the goods under any special specification of the Southern Gases Ltd. There is no such allegation that the goods had any trade name/brand name. He submits that it is only a marking in terms of the Gas Cylinder Rules and such markings on the Cylinder has no connection with the goods as held by Hon'ble Supreme Court rendered in the case of Astra Pharmaceuticals (P) Ltd. v. CCE as reported in 1995 (75) E.L.T. 214, which is applicable to the facts of this case. He also refers to the judgement of the Tribunal rendered in the case of CCE v. Raspha Labs as reported in 1996 (86) E.L.T. 124 (Tribunal).
3. Ld. Counsel submits that the impugned order be set aside and remanded for de novo consideration with direction that the appeals of the appellants be decided on merits, after granting waiver of pre-deposit of the balance amount of Rs. 6,00,000/- as against Rs. 12,00,000/- ordered by the Commissioner.
4. On the other hand, the order was defended by ld. D.R. on the ground that Cylinders contained a marking and such marking has to be recognized as only Trademark. He submits that the said marking has to be done in respect of Liquified Gases only. He submits that on a similar issue, the Tribunal in the case of Cochin Soft Drinks Ltd. v. CCE as reported in 1996 (86) E.L.T. 275 had held that putting the aerated water in bottles bearing the brand name of another person amounts to affixing the brand name for the purpose of sale of aerated water and hence the exemption should not be granted.
5. On a careful consideration of the submission, we are of the considered opinion that the judgment cited by the D.R. in the case of Cochin Soft Drinks Ltd. pertained to the goods having a brand name. The goods were aerated water while in the present case, Oxygen manufactured by the appellants of which 25% has been supplied by other companies on whose cylinders with their own markings. Prima facie it indicates that the marking is on the Cylinder in terms of the Gas Cylinder Rules and they are not branded goods or the goods have been given any brand name or trade name. Prima facie, the judgement of the Supreme Court rendered in the case of Astra Pharmaceutical (P) Ltd. would apply to the facts of this case. In that view of the matter, the pre-deposit as directed by the Commissioner in the present case is waived minus the amount of Rs. 6,00,000/- (Rupees Six lakhs only) which has already been pre-deposited, which seems to us to be sufficient for the purpose of hearing the appeals before the Commissioner (Appeals). As the Commissioner (Appeals) has dismissed the appeals under the proviso to Section 35F of the Act, therefore these appeals are taken up for hearing. On further hearing, we are of the opinion that these appeals are required to be remanded to Commissioner (Appeals) with a direction that he shall consider the appeals before him on merits and dispose of in terms of law.