Customs, Excise and Gold Tribunal - Bangalore
Universal Flexibles Pvt. Ltd. vs Cce, Bangalore on 10 May, 2001
ORDER
Shri. G.A. Brahma Deva
1. This appeal arises out of and is directed against the Order-in-Original dt.20.11.97 passed by the Commissioner of Central Excise, Bangalore.
2. Arguing for the assessee Shri. Shivdas Learned Counsel submitted that issue relates to denial of benefit of Small Scale Exemption in terms of Notification No.175/86 and 1/93. He submitted that no evidence was brought on record to establish the brand name of "Dunlop Hifles" and the logo put on the sticker by the appellants belongs to M/s. Dunlop Hydraulic Hose Ltd., He submitted that no foreign brand name has been used in respect of the goods manufactured by the appellants since the goods manufactured by the respective parties are different and accordingly there was no justification in denying the benefit in terms of the afore said notifications. He said that the important point to be considered in this case is whether the product manufactured by the appellants are different from the rubber hose by a foreign supplier or not. In this connection he drew our attention to the relevant portion of the impugned order in Para 20 "In the instant case 'Rubber hose and Hose Assembly' are the goods with same brand name of foreign company and the assesses respectively. 'Ruber hose' and 'Hose assembly' are classified under Chapter SH 4009.92 treating them as 'tubing' Even classification of Hose assembly under said Tariff Headings is on the ground that the same retains the essential characteristics of 'tubing' (Hose). Hence both the above said goods are to be treated on par under the CETA, 1985. In view of this, it cannot be held that 'Rubber Hose' and 'Hose Assembly' are different goods but belong to same class of goods. Accordingly the said case laws are not relevant to the assessee's case."
3. He contended that if the Department is of the view that the goods cleared by the appellants and the goods supplied by the foreign supplier are one and the same the question of levy of duty does not arise. On the other hand if the goods cleared by the appellants are altogether different from the goods supplied by the foreign supplier the question of using a brand name of foreign supplier in respect of goods manufactured by the appellants does not arise, and accordingly benefit of Small Scale Exemption cannot be denied.
4. Heard Smt. Radha Arun appearing for the Revenue.
5. We have carefully considered the matter. In view of the submissions made by the Counsel particularly with reference to Para 20 of the impugned order it is not clear whether Department wants to treat the goods as one and the same or different. Since the position is not clear and the plea of the Counsel is to be considered with reference to the clear finding on factual position, we are of the view that it is appropriate that the matter will have to go back for re-consideration and to give a clear finding. In the view we have taken we are remanding the matter to the jurisdictional Commissioner to adjudicate the matter afresh and to pass an appropriate order in accordance with law on providing sufficient opportunity to the party. The appellant may make use of this opportunity and substantiate his claim during the re-adjudication proceedings. All the issues are kept open. Since the matter being a old one the adjudicating authority is directed to dispose of the matter at the earliest possible time preferably within 3 months from the date of receipt of this order. Thus these 2 appeals are disposed of in the above terms.
(Dictated and Pronounced in the Open Court)