Exemption under duty notification upheld where installed capacity limit and brand name breach were not proved by the department.

Eligibility for concessional duty under Notification No. 06/2002-CE depended on whether the relevant installed capacity crossed the prescribed limit and whether the brand name condition was breached. The grinding mill capacity was treated as the relevant installed capacity for the cement plant, and the department failed to prove that the threshold was exceeded; the assessee was therefore not disqualified on capacity grounds. The finding that the assessee had used the mark earlier than the other concern, and that partial use of a similar mark by another unit did not amount to use of another person's brand name, meant no violation of the brand name condition was established. The departmental challenge failed and the proceedings remained dropped.

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Issues: (i) whether the assessee was ineligible for the concessional rate of duty under Notification No. 06/2002-CE on the ground that the installed capacity exceeded the prescribed limit; (ii) whether the assessee violated the brand name or trade name condition of the exemption notification.

Issue (i): whether the assessee was ineligible for the concessional rate of duty under Notification No. 06/2002-CE on the ground that the installed capacity exceeded the prescribed limit.

Analysis: The Commissioner had examined the material on record and accepted the assessee's evidence that the grinding mill capacity was below the notified limit. The capacity of the grinding mill was treated as the relevant installed capacity for the cement plant, and the department did not establish that the prescribed threshold was crossed.

Conclusion: The assessee was not disqualified on the ground of installed capacity.

Issue (ii): whether the assessee violated the brand name or trade name condition of the exemption notification.

Analysis: The Commissioner found that the assessee had been using the brand name earlier than the other concern, and the part use of a similar mark by another unit did not amount to use of another person's brand name so as to attract the exclusion clause of the notification. That finding was accepted as a reasoned one.

Conclusion: No violation of the brand name or trade name condition was established against the assessee.

Final Conclusion: The departmental challenge to the grant of exemption failed, and the order dropping the proceedings was sustained.

Ratio Decidendi: Eligibility under the exemption notification turned on the relevant installed capacity and proof of violation of the brand name condition, both of which had to be established by the department on the evidence.

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