Custom, Excise & Service Tax Tribunal
Aurangabad vs Jain Spices & Agro Products on 24 June, 2011
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI APPEAL NO: E/2390/2003 [Arising out of Order-in-Appeal No: BPS (143)444/2003 dated 27/05/2003 passed by the Commissioner of Central Excise & Customs (Appeals), Aurangabad.] For approval and signature: Hon'ble Shri Ashok Jindal, Member (Judicial) and Hon'ble Shri P.R. Chandrasekharan, 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 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? : Seen 4. Whether Order is to be circulated to the Departmental authorities? : Yes Commissioner of Central Excise & Customs Aurangabad ...Appellant Vs Jain Spices & Agro Products ...Respondents
Appearance:
Shri Y.K.Agarwal, Authorised Representative (JDR) for the appellant None for the respondent CORAM:
Hon'ble Shri Ashok Jindal, Member (Judicial) and Hon'ble Shri P.R. Chandrasekharan, Member (Technical) Date of hearing: 22/06/2011 Date of decision: 22/06/2011 ORDER NO:
Per: P.R. Chandrasekharan:
This appeal is directed against the Order-in-Appeal No: BPS (143)444/2003 dated 27/05/2003 passed by the Commissioner of Central Excise (Appeals), Aurangabad.
2. Briefly stated, the facts of the case are as follows:
2.1 The respondent, M/s. Jain Spices & Agro Products are manufacturers of spices and pickles and Shri Ashok C Jain and Shri Ravindra C. Jain are partners in the firm. They started manufacturing spices and pickles from February, 1998 onwards and they marketed their goods under the brand name "RAVI". As the turnover was below the exemption limit of Rs. 30 lakhs / 50 lakhs at the relevant time, they had enjoyed benefit of small-scale exemption vide Notification No. 16/97-CE dated 01/04/1997 and 8/98-CE dated 02/06/1998 as amended. The department was of the view that the brand "RAVI MASALE" belonged to Shri Phulchand Jain, proprietor of Jain Gruh Udyog and, therefore, M/s. Jain Spices and Agro Products have manufactured the excisable goods, namely, pickles and spices, bearing the brand name of another person and hence they were not eligible for the small-scale exemption under the aforesaid notifications and they are liable to pay excise duty at the appropriate rates.
2.2 Accordingly, a show-cause notice dated 11/01/1999 was issued demanding duty of Rs. 91,314/-. The respondent contested that the brand name "RAVI MASALE" belonged to the Jain family and all members of the family were entitled to use the said brand name under a memorandum of understanding dated 18/04/1994 amongst the members of the family and, therefore, they are not using the brand name of any other person. Since the turnover during the relevant period was less than the exemption limit of Rs. 30 lakhs, they are not liable to pay any excise duty.
2.3 The adjudicating authority did not accept the above plea and confirmed the duty demand of Rs. 91,314/- under Section 11A(1) of the Central Excise Act, 1944 and also confirmed the demand for interest on the said duty amount under Section 11AB of the Central Excise Act. The respondent filed an appeal before the Commissioner (Appeals) and the lower appellate authority vide his order dated 27/05/2003 came to the conclusion that the brand name "RAVI" is owned by the members of the Jain family and as per the Memorandum of Understanding signed on 18/04/1994, the said brand name could be used by any member of the family. Accordingly, he held that they were eligible for the benefit of small-scale exemption and accordingly set aside the order of the lower adjudicating authority and allowed the appeal with consequential relief. The department is in appeal before us against the impugned order.
3. The department's contention is that as per the statement given by Shri R.C. Jain, the brand name belongs to M/s. Jain Gruh Udyog and not to the respondents and therefore, the respondents are using the brand name of another person. Therefore, they are not eligible for the benefit of small-scale exemption. The department also relies on the judgment of this Tribunal in the case of Commissioner of Central Excise, Madurai vs. Kali Aerated Water Works 2005 (190) ELT 475 (Tri.-Chennai) and also the judgment of the apex court in the case of Commissioner of Central Excise, Chandigarh vs. Mahaan Dairies 2004 (166) ELT 23 (SC).
4. The respondents, in their cross-objection has stated that the brand name "RAVI" belongs to the Jain family and it does not belong to Jain Gruh Udyog as alleged by the department and all the family members of the Jain family are entitled to use the same as per the Memorandum of Understanding dated 18/04/1994. This Tribunal, in the cases of Commissioner of Central Excise vs. Om Industrial Corporation 1998 (102) ELT 154 (Tribunal) and Commissioner of Central Excise, Chandigarh vs. Fine Industries 2002 (146) ELT 53 have held, in similar circumstances, that the benefit of small-scale exemption cannot be denied.
5. We have carefully considered the rival submissions. From the Memorandum of Understanding dated 18/04/1994, it is seen that the brand name "RAVI MASALE" is the family brand name of the Jain family consisting of father and four sons and the brand ownership is joint and each member of the family can use the brand for developing their own manufacturing and trading activities.
6. In view of the above position, the allegation of the department that the respondent was using the brand name of another person is not sustainable. Reliance placed by the department on the decision in the case of Kali Aerated Water Works (cited supra) dealt with a different situation altogether. In that case, the brand was owned by one Shri KPR Sakthivel and other members of the family were allowed to use the brand name by a deed of mutual agreement. In that context it was held that the use of the brand name and ownership are distinct and different. However, the facts obtaining in the present case are different. In the instant case, as per the Memorandum of Understanding which relates to joint ownership of brand "RAVI MASALE", all the five members of the family are joint owners of the brand name "RAVI MASALE" and each one of them could use the brand name in their own manufacturing and trading activities. Hence the ratio of the aforesaid judgment relied upon by the department is not applicable to the facts of the case.
7. In the light of the above discussion, we are of the view that there is no infirmity in the impugned order. Accordingly, we dismiss the appeal filed by the department.
(Operative part pronounced in Court) (Ashok Jindal) Member (Judicial) (P.R. Chandrasekharan) Member (Technical) */as ??
??
??
??
6 2