Custom, Excise & Service Tax Tribunal
Cce, Jalandhar vs Zoloto Malleables on 1 March, 2012
CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL,
West Block No. 2, R.K. Puram, NEW DELHI
COURT No. III
Excise Appeal No.1804 of 2005
Date of Hearing : 01.03.2012.
[Arising out of Order-In-Appeal No.50/CE/APPL/CHD/2005, dated 18.02.2005 issued by CCE, Chandigarh]
For approval and signature:
Honble Ms. Archana Wadhwa, Judicial Member
Honble Mr. Mathew John, Technical Member
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
CCE, Jalandhar Appellant
Versus
Zoloto Malleables Respondents
Coram:
Honble Ms. Archana Wadhwa, Judicial Member Honble Mr. Mathew John, Technical Member Present for the Appellant Shri I.Baig, AR Present for Respondents Shri Ravi Chopta, Adv.
Order No._______________ Dated :___________ Per Ms. Archana Wadhwa:
Being aggrieved with the order passed by Commissioner (Appeals), Revenue has filed the present appeal. We have heard Shri I.Baig, ld. AR appearing for the Revenue and Shri Ravi Chopra, ld. Advocate appearing for the respondents.
2. Though the ld. advocate appearing for the respondent has advanced arguments on the maintainability of the appeal itself in as much as the authorisation letter was not signed by the Committee of Commissioners but was signed by the Commissioner, we proceed to decide the appeal on merits in as much as we find that the issue stands covered by the precedent decision.
3. Brief facts of the case are that the Central Excise staff visited the factory premises of the party on 27.10.01 and it was found that the party was using the brand name ZOLOTO-m on the Pipe Fittings manufactured by them under the SSI exemption notification in operation at the relevant time. In terms of the SSI notification, exemption to the specified goods was not admissible, if the goods bore the brand name or trade name of another person. On physical verification, the staff found stock of Pipe fittings valued at Rs.4,11,881/- bearing the brand name ZOLOTO-m which was seized by them on the reasonable belief that the respondents were affixing the brand name of another person.
4. Shri Parvinder Hans, Prop. in his statement admitted that the brand name ZOLOTO was registered with M/s Zoloto Industries, Jalandhar and that they were affixing brand name ZOLOTO-m on Pipe fittings being manufactured by them and mentioning the same on their invoices.
5. It was alleged that merely writing the word m with the brand name ZOLOTO, i.e., ZOLOTO-m does not distinguish it from the brand name ZOLOTO belonging to M/s Zoloto Industries and the usage of deceptively similar brand name established clearly the intention of the party to take advantage of the established brand name of another person. Thus, the party was not eligible to avail exemption under the SSI notification.
6. Accordingly, Show Cause Notice was issued and the adjudicating authority vide O-I-O dtd. 31.07.04 confirmed the demand of Central Excise duty of Rs.22,33,547/- under Section 11A and ordered its recovery along with interest. Confiscation of 19059 pcs of GIMI Pipe Fittings valued at Rs.4,11,881/- was also ordered with the option to redeem the same on payment of R.F. of Rs.1,03,000/-. The adjudicating authority also imposed penalty of Rs.22,33,547/- under section 11AC and Rs.1,50,000/- under Rule 173Q of Central Excise Rules, 1944 and Rule 25 of the Central Excise (No.2) Rules, 2001.
7. Being aggrieved, the party filed an appeal with Commissioner(Appeals).
8. The Commissioner(Appeals) held that trade mark ZOLOTO-M has been registered in their name under the Trade Marks Act, 1999 of Govt. of India vide Trade Mark No.933389 dated 21.06.2000 and thus, have become liable for exemption under Notification No.8/2000 dtd. 01.03.2000. The Commissioner (Appeals) has also held that though the Registration Certificate was issued by the Competent Authority on 18.01.2005, the party is entitled for exemption w.e.f. the date of application, i.e.. 21.06.2000, as has been held by the Tribunal in the case of Whale Stationery Products Ltd. reported in 2004(168)ELT405.
9. Commissioner(Appeals) also relied upon the Honble Supreme Courts decision in the case of Mahaan Dairies reported in 2004(166)ELT23 wherein, it was observed by the Honble Supreme Court that if the assessee gets their trade name Mahaan Taste Maker registered in their name, they would become entitled to benefit of Notification No.8/98-CE. Boards Circular No.88/88, dtd. 13.12.88 was also referred.
10. Commissioner(Appeals) has also held that as both the parties using the brand name ZOLOTO-M and ZOLOTO fall under the jurisdiction of same Central Excise Division, the department was fully aware about the use of brand name by both the parties and hence, there is no suppression of facts.
11. Accordingly, he allowed the appeal of the respondent.
12. On going through the impugned order of Commissioner (Appeals), we find that there is no dispute about the fact that respondent was using Zoloto-M and not Zoloto which belonged to Zoloto Industries. There is also no dispute that the respondent applied for registration of the said brand name Zoloto-M vide their application dtd. 21.06.2000 and the registration certificate was issued by the competent authority under the Trade Mark Act, 1999 on 18.01.05. By relying upon the Tribunals judgement in the case of Whale Stationery P.Ltd., he has held that the grant of registration would relate back to the date of application.
13. Revenues contention is that in terms of the Honble Supreme Courts decision in the case of Mahaan Dairies which also stands relied upon by the Commissioner(Appeals), benefit of Notification would be applicable only when the assessee get their trade name registered. In as much as in the present appeal, the registration was granted only on 18.01.05, though the respondent applied for the same on 21.06.2000, the benefit of SSI exemption would be applicable only w.e.f. 18.01.05.
14. We find no merits in the above contention of the Revenue. Relying on the observations of the Honble Supreme Court in the case of Mahaan Dairies, does not advance the Revenues case in as much as in that case there was no issue about the date of applicability of registration, i.e., whether from the date of issuance of certificate or from the date of application. The Tribunals decision admittedly in the case of Whale Stationery P.Ltd. deals with the issue involved in the present appeal. As such the same stands correctly applied by Commissioner(Appeals). The respondent having applied for the registration which ultimately stands granted to them, the delay on the part of the authorities to grant such registration cannot act prejudice to the assessees benefit. As such we agree with the ld. Commissioner(Appeals) that the respondent having been granted registration which has to be made effective from the date of application, the respondents were entitled to the benefit of the Notification.
15. Apart from the above, we find that Commissioner(Appeals) has granted benefit to the respondent on the issue of time bar also by observing as under :-
The above contention of the appellant is quite correct and convincing in as much as they have been using the brand name ZOLOTO-m on their products and thus adding word m with the trade name ZOLOTO registered by another company. As their trade name ZOLOTO have been registered in their name under the Trade Marks Act, 1999 of Govt. of India vide trade mark No.933389 dtd. 21.06.2000, they become liable for exemption under Notification NO.8/2000 dtd. 01.03.2000 as held by the Apex Court supra. Though the Appellant applied for the registration of their trade name on 21.06.2000 but he required certificate has been approved by the competent authority on 18.01.2005. They are, however, entitled for the exemption w.e.f. the date of application as clearly held by the CESTAT in the case of Whale Stationery Products Ltd. reported in 2004(168)ELT405 wherein it has been held that :
The second contention of the appellant is that their demand in question is time barred in as much as they have filed the declaration claiming exemption on 29.02.2000 and mentioning the use of their trade name ZOLOTO-m. Since the use of brand name ZOLOTO-m was well within the knowledge of the department as such there is no question of suppression of the facts. Not only this the owner of the brand name ZOLOTO also falls within the jurisdiction of the same Central Excise Division, as such the issue was amply clear to the department. I agree with the above contention of the appellant and the use of trade name ZOLOTO by another owner was in the jurisdiction of the same Central Excise Division and the department was fully aware of the facts of using these two brand name by different manufacturers. Hence no suppression of facts. The demand for the period from 29.05.2000 to 26.10.2001 is clearly time barred as the Show Cause Notice was issued on 15.04.2002.
16. As is seen from above, Commissioner(Appeals) has held the demand to be time barred in as much as the assessee has filed the declaration claiming the benefit of the Notification and mentioning the use of brand trade name Zoloto-M. Revenue has made a ground that in as much as the assessee never disclosed the fact that the said brand name was not registered in their name and similar brand name was registered in the name of Zoloto Industries, suppression is attributable to them. We do not find any merits with the above contention. The respondents have shown the fact of use of said brand name in their declaration as also the fact of availment of SSI exemption Notification. Having placed the entire facts before the Revenue, they cannot be held guilty of any suppression or misstatement with intent to evade payment of duty. As such we are of the view that the appellate authority has rightly denied the extended the period of limitation to the Revenue.
17. In view of the fore going discussions, the appeal filed by the Revenue is rejected.
(Pronounced in the open court on ____________) (Archana Wadhwa) Judicial Member (Mathew John) Technical Member RK-I ??
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