Custom, Excise & Service Tax Tribunal
M/S Jai Udyog Trading Corpn vs Cce, Jallandhar on 10 April, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Excise Appeal No. 2593 of 2005-EX[DB]
[Arising out of Order-In-Appeal No 151-153/CE/CHD/Jal/2005 dated 28.4.2005 passed by Commissioner of Central Excise, Jalandhar]
For approval and signature:
Honble Ms. Archana Wadhwa, Member (Judicial)
Honble Mr. Rakesh Kumar, 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?
No
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3
Whether Their Lordships wish to see the fair copy of the Order?
Seen
4
Whether Order is to be circulated to the Departmental authorities?
Yes
M/s Jai Udyog Trading Corpn. Appellants
Vs.
CCE, Jallandhar Respondent
Appearance:
None for the Appellants Shri Nagesh Pathak, DR for the Respondent CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial) Hon'ble Mr. Rakesh Kumar, Member (Technical) Date of Hearing/decision : 10.04.2013 ORDER NO ./ FO 56095 /2013-Ex(Br) Per Archana Wadhwa (for the Bench):
On matter being called nobody appeared on behalf of the applicant inspite of notice of hearing having been sent to them well in advance. We have accordingly heard learned DR and have gone through the impugned order.
2. The appellants are manufacturing valves and cocks under the brand name of Kirti and were availing the benefit of small scale exemption notification. Proceedings were initiated against them by way of issuance of show cause notice dated 16.4.03 alleging that the brand name Kirti belongs to M/s. Jupiter Metal Industries, who were using the same in respect of their final product, i.e. pipes. Accordingly, the notice proposes to deny the benefit of small scale exemption notification and to confirm the demand of Rs.1,18,586/- for the period 1.1.02 to 15.4.02. Another show cause notice dated 26.3.02 also stand issued proposing confiscation of 399 pipes of valves and cocks totally valued at Rs.37,982/- and as also for imposition of penalties.
3. Both the show cause notices stand adjudicated by the lower authorities confirming the demand, confiscating the goods and imposing penalties. Same were upheld by the Commissioner (Appeals).
4. It is seen that appellants have claimed that they were using the brnad name of Kirti on valves and cocks for the last 35 years and it was their own brand name. They also referred to other four show cause notices issued to them on the same ground which were dropped by Commissioner (Appeals) vide its order in appeal No. 848/CE/CHD/04 dated 30.12.04. There is nothing on record to show that the said order in appeal of Commissioner (Appeals) was appealed against by the Revenue. Apart from that we note that during the period there were decisions laying down that if the brand name is being used on two different products, the debarring clause of small scale exemption notification would not get attracted. Reference in this regard is made to Larger Bench decisions in the case of CCE Chandigarh vs. Fine Industreis [2002 (146) ELT 53 (Tri-LB)] as also to the Supreme Court in the case of CCE Chandigarh vs. M/s. Bhalla Enterprises [2004 173 ELT 225 (SC)].
5. If that be so, we are of the view that no malafide suppression or mis-statement can be attributed to the appellant inasmuch law was subsequently clarified by the Honble Supreme Court in the case of Mahaan Diaries [2004 (166) ELT 23(SC)] Inasmsuch as the major part of the demand is beyond the normal period of limitation, we allow the appeal on the point of time bar. Whatever small demand would fall within the limitation period, the lower authorities would quantify the same under intimation to the appellant.
6. As regards penalty or confiscation of the goods, we feel that the same is not called for in view of the foregoing discussions. Accordingly we set aside the confiscation of the goods and imposition of penalty. The appeal is disposed of in the above terms.
(Pronounced in the open court)
( Archana Wadhwa ) Member(Judicial)
( Rakesh Kumar ) Member(Technical)
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