Customs, Excise and Gold Tribunal - Delhi
A.S. Cycle Industries vs Commissioner Of C. Ex. on 30 November, 1998
Equivalent citations: 1999(105)ELT603(TRI-DEL)
ORDER C.N.B. Nair, Member (T)
1. These two appeals are directed against the common Order No. 12/CE/CHD-II /98/876, dated 5-8-1998 passed by the Commissioner of Central Excise, Chandigarh-1, Chandigarh demanding Central Excise duty over Rs. 13 lacs from M/s. A.S. Cycle Industries and imposing of penalty of Rs. 14 lacs and Rs. 7 lacs respectively on M/s. A.S. Cycle Industries and M/s. Freedom Sales. The dispute involved in these appeals is the eligibility of foot operated pumps manufactured by A.S. Cycle Industries to exemption under Notification No. 175/86. The impugned order has held that they were not eligible as they were using brand name 'Freedom' of their trading concern M/s. Freedom Sales on the said foot operated pumps, as the exemption was not available to the goods on which the brand name of another person who was not entitled to exemption was affixed on the goods.
2. Arguing for the applicants, learned counsel Shri V. Sridharan submitted that the finding of the Commissioner that M/s. Freedom Sales was not entitled to the small scale exemption was erroneous and is the result of a clear mistake about the facts. He submitted that M/s. Freedom Sales had registration as a small scale unit for assembly of cycle pumps and cycle pumps accessories from the year 1977 and, thus, was entitled to exemption as small scale unit under Notification No. 175/86. The Collector was under the wrong impression that certificate was from 1997 only as would be observed from the second para on page 11 of his order. Shri Sridharan also submitted that their case is covered by the decision of the CEGAT in the case of Dipika Engineering Company v. CCE & Customs, Baroda 1998 (77) ECR 587 Wherein the Tribunal held that there is no distinction between eligibility for exemption and availing of exemption. The fact that S.S.I. unit did not actually clear the goods, does not mean that it was not eligible for the benefit of exemption.
3. Heard Shri D.S. Negi for the Revenue who submitted that since Freedom Sales was only a trading concern, it has to be treated as S.S.I. unit not eligible for exemption under Notification No. 175/86.
4. We have perused the records of the case and have considered the rival submissions. We find that the appellants have made out a strong prima facie case in their favour particularly in view of the aforesaid decision of the Tribunal. Accordingly, predeposit of duty and penalty is waived and their recovery is stayed pending decision in the appeals. The appeals shall come up for hearing in their turn.