Customs, Excise and Gold Tribunal - Bangalore
M/S. Vet Care Organics Ltd., (Formerly ... vs The Commissioner Of Central Excise, ... on 31 May, 2001
Equivalent citations: 2001(76)ECC813
ORDER
Shri S.S. SEKHON
1. These two appeals i.e No E/1440/95 & E/R/602/96 along with Cross Objection E/Cr/75/01 filed by the assessee and Revenue against the same order taken up for disposal by this Common Order.
2. The Collector has by impugned order held -
(i) The benefit of S.S.I Notification out for the period 1.4.92 to 28.2.95 as proposed, was not available on the products Halquinol and on Sanitech not available for the period 1.11.94 to 28.2.95. As for the earlier period, the same was barred by limitation. These products were not eligible for he benefit since Brand name 'VETCARE' belonging to M/s Tetragon Chemie Pvt Ltd. was used and who were not entitled for SSI exemption.
(ii) The other products viz. 3-CARE, COLIDOX were rightly classifiable as Animal Feed Supplements, under heading 2302.00 of the Central Excise Tariff Act 1985 and the demands raised on the same by proposing to classify them elsewhere, as proposed in the Show Cause Notice was dropped. Since these goods were found to be classified under 2302 and eligible for exemption, he did not find the necessity of giving a finding, whether they were branded or not. Nor did he consider the charge of suppression as alleged.
(iii) A penalty of Rs 500/- was imposed under rule 173Q (1) for having contravened the provision of the rules for the payment of duty on branded goods Halquinol and Sanitech determined by him.
(iv) He did not find a case for imposition of penalty and confiscation under rule 173Q(2).
3. (a) Appeal No E/440/95 by the appellant is against the finding of denial of SSI exemption on the ground of using the Brand Name 'VETCARE' for the said periods, and the penalty under rule 173Q (1).
(b) Appeal No 1602/96 and Cross objection E/Cr/75/01 is the appeal by Revenue on classification of the goods as Animal feed supplement and Cross Objection by Respondent thereon.
4. We have heard both sides and consider the submissions and find - (a) A close perusal of the paragraphs 53 to 56 of the impugned order reveal that the Collector has heavily relied on a letter dated 20.8.92 of the assessee Company addressed to the Range Superintendent, where details of the products as desired were submitted, which gives an indication of the use of 'Logo'. The learned Dr on the other hand strongly contended that the charge was that the 'labels' were purposely withheld and submitted the copy of the said labels and relied on para 12.3 of the 'Brief facts' as annexed to the Show Cause Notice in this regard. The learned Advocate vide his letter dt 23.5.2001, produced the copy of the letter dated 19.8.92 of the Range Superintendent, seeking the particulars of the products manufactured and reply dt. 20.8.92 of the assessee as relied by the Commissioner. A perusal of this reply dt. 20.8.92, reveals that it gives the Composition, Manufacturing process and End use, but does not enclose the labels, brochures, etc. to indicate, what were the goods known as, to the persons dealing in them. While we note, that with same letter dt. 23.5.2001, the learned advocate, in another case of M/s Tetragon Chemie (P) Ltd, has enclosed a letter dt 22-5-90 addressed to the Superintendent Central Excise, enclosing 'the labels' of all the Animal Feed Supplements manufactured by them. This non-enclosure of the 'labels, to the letter dt 20/8/92, by M/s Vetcare and the specific charge in para 12.3 of the Annexure to Show Cause Notice that, Sh. Bharat was "evasive in submitting about the disclosure of labels" lead us to conclude that the 'labels' were deliberately withheld by M/s Vetcare & others and the Collectors finding in para 53 to 56 arrived at cannot be upheld. Vital information relevant to determine the nature of the goods, as sought was withheld. Any finding arrived at about the non-applicability of proviso to section 11A(1), in this view of the fact, cannot therefore be upheld.
(b) We find that the Collector in para 62 of the impugned order has held -
".....The assessee has not produced any evidence to the effect that the brand name VETCARE is registered only for 'Animal feed Supplement...."
is also found to be factually incorrect. A certificate issued by Registrar of Trade Mark to M/s Tetragon Chemie (P) Ltd, certifying 'VETCARE with a logo' registered for "Foodstuff for Animal & Poultry, Animal Feed Supplements, etc" was produced before him and a specific submission was made, as can be seen from copy of written submission filed before him and now available the paper book. That they were using there own Company's name on products not covered by 'Trade Mark Registration' and they had heavily relied upon the case of K.M. Muttani V Paramount Talkies of India 1943 (13) Company cases 90 (Bom), to claim the right of the Company to use its own name were relevant submissions made before the learned Collector. The order has ignored these vital submissions, by recording a factually in accurate finding. Such orders are required to be set aside, at the threshold and remanded back for re-determination.
(c) Since we find, this case, is a fit case to send it back for De novo adjudication, we refrain from going into the other aspects of the classification and the points urged before us in the cases filed by both sides. We leave the same open to be urged before the Adjudicating authority in the remand proceedings.
5. In view of our finding, we set aside the order and allow both the appeals (i.e. E/440/95 and E/1602/96 & dispose of the cross objection E/Cr.75/2001) by way of Remand for DE NOVO Adjudication.
(Pronounced in the Court on 31/5/2001