Customs, Excise and Gold Tribunal - Mumbai
Hifin Products Pvt. Ltd. vs Commissioner Of Central Excise And ... on 8 November, 2001
Equivalent citations: 2002(150)ELT197(TRI-MUMBAI)
JUDGMENT
Gowri Shankar, Member (Technical)
1. The matter was adjourned on the last occasion when it came to the light that only one appeal had been filed against the order of the Commissioner disposing of seven appeals before him, counsel for the applicant sought time to file other appeals. These appeals and application for condonation of delay have been filed but were not listed today. With concurrence of both sides we have taken up for hearing and the stay application.
2. The delay of 195 days in filing these six appeals is explained as follows. From a reading of the order of the Commissioner (Appeals) the applicant was under the bona fide belief that it was a single order and therefore a single appeal would suffice. That appeal was filed on time. It was only when the bench pointed out that the Commissioner had disposed of six appeals, the fact came to be known.
3. The Commissioner's order disposing of seven appeals bears seven numbers and seven appeals ought in fact have been filed in time. From the appeal that was filed, it was clear that the applicant was aware that the Commissioner had disposed of seven appeals but applicant was unaware of the fact that such appeals were required to be filed. Accordingly we condone the delay.
4. The application is for waiver of deposit of duty of Rs. 21.94 lakhs and penalty of Rs. 3.15 lakhs. Duty has been demanded n the ground that the applicants were not entitled to be benefit of notification 1/93 for the lapping machine that it manufactured. The department finds that the applicant put these machines a label containing the letter "H" in ornamental form, which was the registered trade mark of Bhukanawalla Tools Ltd. Therefore the condition in paragraph 4 of the notification that it would not be applied to branded goods was attracted.
5. The contention of the counsel for the applicant is that the brand name in question was registered by its owner Bhukanawalla in respect of abrasive preparations. These are in a difference class in the schedule to the Rules under the Trade and Merchandise Marks Act, 1958. He relies upon a circular dated 30.12.98 of the Board circular explaining that the provisions of paragraph 4 will not apply in case the goods bear a brand name of a different class of goods. He also relies upon the decision of the Taj Serpent Egg Factory v. CCE 1996 (85) ELT 78 and Precise Electronics v. CCE 1993 (65) ELT 69.
6. The departmental representative cites the decision of CCE v. Control Tech Electronics 2000 (120) ELT 369 in support. The question for consideration in the two decisions that the counsel for the applicant relies upon is that use of a brand name belonging to a fire work manufacturer by a pyrotechnic manufacturer in one case and for brand name put upon a watch by a manufacturer of clock would attract the provisions of the relevant paragraph of notification 175/86 and 1/93. The Tribunal in each of the decision found that the product being different it would not be attracted. One of the decisions has relied upon the board circular. The decision that the departmental representative relies upon does not seem to us to deal with this aspect at all; it was concerned with whether the relevant paragraph of notification 175/86 could apply to goods containing the brand name of the custom rule on behalf they were manufactured. The Tribunal has found that it would apply. This fact does not appear to be relevant to the issue before us.
7. In these circumstances, we waive deposit of the duty demanded and penalty imposed and stay their recovery.