Custom, Excise & Service Tax Tribunal
Appu Hotels vs Commissioner Of Gst&Amp;Cce(Chennai ... on 26 October, 2018
1
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Application No.: E/COD/41592/2018
Appeal No.: E/41896/2018
(Arising out of Order-in-Appeal No. 156/2017 (CTA-II) dated
31.10.2017 passed by the Commissioner of G.S.T. & Central Excise
(Appeals-II), Chennai)
M/s. Appu Hotels Ltd., : Applicant/Appellant
No. 1, GST Road,
St. Thomas Mount,
Guindy, Chennai - 600 032
Versus
The Commissioner of G.S.T. & Central Excise, : Respondent
Chennai Outer Commissionerate Appearance:-
Ms. Jayalakshmi, Advocate for the Appellant Shri. L. Nandakumar, AC (AR) for the Respondent CORAM:
Hon'ble Shri P Dinesha, Member (Judicial) Date of Hearing/Decision: 26.10.2018 Final Order No. 42700 / 2018 The above application seeking Condonation of Delay (COD) has been filed by the appellant seeking to condone the delay of 179 days in filing the appeal.
2. It is the case of the applicant/appellant that the said delay was due to the fact that their Clerk had left services without properly 2 handing over the pending papers lying on his desk and that the delay was neither willing nor wanton but only due to the above bona fide reason. Ld. AR submitted that he had no objection for condoning the above delay.
3. Accepting the reasons given in the application, I condone the delay of 179 days in filing the appeal and allow the application for COD.
4. Heard both sides on merits.
5. Today when the matter came up for hearing Ld. Advocate Ms. Jayalakshmi appeared on behalf of the appellant and Ld. AC (AR) Shri. L. Nandakumar appeared on behalf of the Revenue.
6. During the course of hearing, Ld. Advocate submitted that the issued involved is no more res integra as the same as already been laid to rest by the Order of this Bench of the CESTAT in the appellant's own case for an earlier period in Appeal Nos. E/692 & 709/2010 wherein this Bench vide Final Order Nos. 41097- 41098/2018 dated 11.04.2018 has ruled in favour of the assessee.
7. Per contra, Ld. AR though supported the findings of the lower authorities, but however agreed that the issue has been decided by this Bench in the appellant's own case (supra). 3
8. I have heard the rival contentions, perused the materials placed on record and have also gone through the judgements referred to during the course of arguments.
9. On a careful consideration of the Order of this Bench in the appellant's own case (supra), I find that this Bench after considering the rival contentions, has ruled as under :
‚ 6. In the present case, the appellants have entered into an agreement with Meridien SA dated 12.4.2000 by which they have acquired the brand name ‚Le Royal Meridien‛ . They have been given the exclusive right to use the brand name till the expiry of the agreement. Therefore, it cannot be said that they are using the trademark of another person. This issue was considered by the Hon'ble Supreme Court in the case of Otto Bilz (India) Pvt. Ltd. (supra), wherein the foreign brand name owner when had assigned the trademark to the Indian company under an agreement with the right to use the trademark exclusively in India, the Hon'ble Court held that the Indian company is entitled to SSI exemption. The relevant portion of the judgment is reproduced as under:-
' 3. As per the Revenue, the respondent is using brand name 'BILZ' of a foreign company which makes the respondent ineligible to seek exemption under the aforesaid Notification. However, it has come on record that the foreign company, viz., M/s. Otto Bilz Wekzugfabrik GMPH & Co., a German company, has assigned the trade mark 'BILZ' in favour of the assessee under Agreement dated 18-6-1996 with right to use the said trade mark in India exclusively. Because of the aforesaid assignment, the assessee is using the trade mark 'BILZ' in its own right as its own trade mark and therefore, it cannot be said that it is using the trade mark of 'another person'. We, thus, are in agreement with the view taken by the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as 'CESTAT') [2015 (180) E.L.T. 61 (Tri. - Bang.)] that the assessee would be entitled to the aforesaid Exemption Notification.
4. It may also be pointed out that show cause notice dated 31-3-1999 which pertained to the period July, 1997, to March, 1998, is held to be time-barred by CESTAT and further holding that the Revenue could not avail the benefit of proviso to Section 11A of the Central Excise Act. Finding of the CESTAT on this issue is also without any blemish.
5. We, thus, do not find any merit in this appeal which is dismissed on both these grounds.'
7. Following the said decision, we are of the considered view that the denial of SSI exemption is without any basis. For the same reason, the penalty imposed 4 on Shri A. Sennnimalai, Managing Director of M/s. Appu Hotels Ltd. is set aside.
8. In the result, the impugned orders are set aside and both the appeals are allowed with consequential relief, if any.‛
10. I find that the Department has neither been able to distinguish the Order of this Bench in the appellant's own case (supra) nor could it furnish any contrary orders/judgements of higher fora; and hence the issue being identical, I am of the view that the above ratio is required to be followed for which reason I set aside the impugned Order and allow the appeal filed by the appellant.
11. The appeal is also allowed with consequential benefits, if any, as per law.
(Operative part of the order was pronounced in open Court) (P Dinesha) Member (Judicial) Sdd