Custom, Excise & Service Tax Tribunal
M/S Kusum Foundry & Metal Works (P) Ltd vs Cce, Indore on 1 February, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. III DATE OF HEARING : 01/02/2016. DATE OF DECISION : 01/02/2016. Excise Appeal No. 1357 of 2007 [Arising out of the Order-in-Appeal No. IND-I/28/2007 dated 19/02/2007 passed by Commissioner (Appeals) I, Central Excise & Customs, Indore.] For Approval and signature : Honble Shri S.K. Mohanty, Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) 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 would 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 : Department Authorities? M/s Kusum Foundry & Metal Works (P) Ltd. Appellant Versus CCE, Indore Respondent
Appearance Ms. Neha Meena, Advocate for the appellant.
Shri Govind Dixit, Authorized Representative (DR) for the Respondent.
CORAM: Honble Shri S.K. Mohanty, Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) Final Order No. 50132/2016 Dated : 01/02/2016 Per. B. Ravichandran :-
The present appeal is against order dated 19/2/2007 of Commissioner (Appeals), Indore. The appellants are engaged in the manufacture of brake drums, hubs and drums, and trolley drums etc. and castings thereof, liable to Central Excise duty. They have their own brand name KFMW. The officers conducted certain verification in the unit of the appellant in January 1997 and found 295 machined pieces of hubs and drums with B Gwalior markings and 21 machined pieces of the said products with name National Gwalior, alongwith a number of castings of other brand names like BEW, NEC, Goodwill etc. After investigation which included recording statements of the Managing Director, Production Supervisor of the appellant company and various buyers. Proceedings were initiated against the appellant to deny exemption under Notification No. 1/1993-CE (NT) dated 28/3/1993, as amended. The exemption under the said notification shall not apply in respect of goods bearing at brand name or a trade name [registered or not, of another person]. The proceedings concluded in order-in-original dated 16/3/1998. On appeal, the Commissioner (Appeals) vide his order dated 6/1/2000 dismissed the appeal for failure to pre-deposit, the duty and penalty. On further appeal, the Tribunal vide final order No. E/A/395/2000-NB dated 31/3/2000 remanded the matter to Commissioner (Appeals) for a fresh decision. Commissioner (Appeals) vide his order-in-appeal dated 18/11/2004 set aside the original order dated 16/3/1998 and remanded the matter to the Original Authority for a denovo consideration. The Original Authority issued order dated 11/10/2006. It is seen the appellants did not present their case on merit before the Original Authority and have only disputed the power of the Commissioner (Appeals) for remanding the case for denovo decision. The Original Authority decided the case vide order dated 11/10/2006. He confirmed Central Excise duty of Rs. 3,71,805/- and imposed equal penalty. He also ordered confiscation of seized goods and allowed the redemption on payment of fine. On appeal, vide the impugned order dated 19/2/2007, the Commissioner (Appeals) upheld the original order. However, on quantification of duty he allowed the re-calculation to be made considering the value as cum duty price. He reduced the penalty to Rs. 1,00,000/- in terms of Rule 173Q.
2. Aggrieved by this order, the appellant is before us.
3. The learned Counsel for the appellant submitted that there is no evidence on record that the finished machined casting cleared by them is with brand name of any person. It was submitted that they have cleared castings without any brand name of any other person. Alternatively, the learned Counsel pleaded that National, Goodwill, NEW, NEC, BEW are not to be considered as brand name of another person. These are only house marks for identification purposes. It was also submitted that the Department failed to establish that the appellants used the brand name owned by others. She also submitted communication from Trade Marks Registry with reference to two brand names National and Goodwill. The Trade Mark Registry in their communication stated that the said marks, prima facie, inherently not capable of distinguishing the goods/ services mentioned in the request within the meaning of Section 9 of Trade Marks Act, 1999. The learned Counsel pleaded that it is clear that these names cannot be considered as Trade Marks or brand names.
4. The learned AR reiterated the findings in the impugned order. He submitted that the metal seals found in the premises of appellants unit were having different brand names belonging to other persons. The seizure of various machined pieces with markings of other persons brand name clearly show that the appellants are engaged in the manufacture and clearance of the machined pieces with the brand name of others. This has been corroborated by statements of the Managing Director and the Production Supervisor of the appellant company. The different customers also categorically stated that they have been buying Break Drums, Tractor Trolley, Hubs with their (customers) brand name from the appellant. The Department has categorically established by way of physical goods and corroborative statements that the appellants are engaged in the manufacture of dutiable items with the brand name of other persons. Regarding the appellants plea that these signs/wordings are not to be considered as Trade Marks or brand names, learned AR submitted that even unregistered brand name or trade name is covered by the Explanation IX under para 4 of the Notification No. 1/1993-CE.
5. We have heard both the sides and examined appeal records. The main point for decision is whether or not the appellants manufactured and cleared dutiable goods with the brand name or trade name of another person. We find the terms of Explanation IX under para 4 of the said notification as below :-
Brand name or trade name shall mean a brand name or trade name, whether registered or not, that is to say a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identify of that person.
6. The Managing Director of the appellant company had confirmed that they have been clearing hubs and drums which is further confirmed from the balance sheet for the relevant period. The fact has been confirmed further by the statement of the Production Supervisor. These were corroborated by the customers who purchased these finished branded goods. The affidavits of retraction filed after almost 1= years are clearly an afterthought. The case of the Revenue is not only based on the statements. There were physical seizure and independent corroboration including statements of the customers and the bills which covered the clearances. The impugned order examined all these issues in detail. The learned Commissioner examined all the evidences and came to the conclusion that the appellants have cleared during the impugned period goods with brand name which was not owned by them and as such are liable to Central Excise duty as SSI exemption will not be available to them. We find in the present appeal, the appellant is not able to bring in any point for consideration to interfere with the impugned order. Regarding the communication received from Trade Marks Registry, it is to be noted that the same is regarding the application of Section 9 of the Trade Marks Act, 1999 for the purpose of registration. As mentioned above, for denial of exemption the brand name or trade name has a wider connotation, registration being not mandatory. We find no merit in the present appeal and as such dismiss the same.
(Operative part of the order pronounced in the open court.) (S.K. Mohanty) Member (Judicial) (B. Ravichandran) Member (Technical) PK ??
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