Customs, Excise and Gold Tribunal - Delhi
M/S. Tele Data Controls (India)Pvt. ... vs Cce, Delhi on 13 June, 2001
ORDER
V.K. Agrawal
1. This is an application, filed by M/s. Tele Data Controls (India) Pvt. Ltd. for waiver of predeposit of central excise duty amounting to Rs.1,14,630/- and penalty Rs.1 lakh confirmed by the Commissioner (Appeals) under the impugned Order. Shri Naveen Mullick, learned Advocate, submitted that duty has been demanded by the Revenue by denying benefit of Notification No. 1/93 on the ground that they were affixing the brand name of Star Electronics Ltd. He, further, submitted that they were affixing their own brand name "STAR" with 8 stars whereas trade mark "STAR" is a common brand name used by many persons; that in any case Star Electronics Ltd. used trade mark "STAR" with single star; that accordingly the trade mark used by the applicant is different from the trade mark of Star Electronics. The learned Advocate also mentioned that they have also paid additional duty of central excise treating the clearance of goods affixed with so called brand name of Star Electronics as their own clearances while computing the aggregate clearance of the products for the purpose of SSI exemption; that to that extent the additional duty paid by them should be adjusted against the demand of duty confirmed against them.
2. Opposing the prayer Shri M.P. Singh, learned D.R., submitted that as per the findings of the Commissioner (Appeals) in the impugned Order. Shri Subhash Narain, Director of the applicant, and Shri G. Ajay Babu, Commercial Assistant of Star Electronics, had deposed that "STAR" was unregistered brand name of Star Electronics Ltd. and was being printed on the EPABXs being manufactured by the Applicants on behalf of Star Electronics Ltd.; that even putting the brand name "STAR" with 8 stars would convey a connection of the goods in the course of trade with M/s. Star Electronics Ltd. He finally mentioned that the duty paid in excess, if any, cannot be adjusted as they have to file refund claim which will be subject to the applicability of principle of unjust enrichment.
3. We have considered the submissions of both the sides. Shri Subhash Narain, Director of the applicants, in his statement dated 29.11.94 has deposed that "for our brand we print "ALPHA COMMEX EPABX" and for Star we print "STAR" with some stars." In view of this and the findings recorded by the learned Commissioner, the applicants have not made out a strong prima facie case in their favour. Accordingly we direct them to deposit Rs.50,000/- within 8 weeks from today towards duty. On complying with this direction, there will be waiver of predeposit of remaining amount of duty and entire amount of penalty and the recovery of the same will remain stayed during the pendency of the appeal. The matter will come up for reporting compliance on 7.8.2001.