1998 (6) TMI 348 - AT - Central Excise

Tribunal affirms duty demand, RTF meters marketable, 'AE' brand negates exemption, penalties reduced, confiscation order set aside.

The tribunal upheld the duty demand on EEW, confirmed the marketability of the RTF meters, and determined that the exemption under Notification 175/86 was ... Marketability - Reed Type Frequency (RTF) meters - Marketability - Confiscation - Penalty Issues Involved:1. Marketability of Reed Type Frequency (RTF) meters.2. Eligibility for exemption under small scale industries exemption Notification 175/86.3. Classification of RTF meters under the Central Excise Tariff Act.4. Affixation of brand name and its implications.5. Imposition of duty and penalties.Issue-wise Detailed Analysis:1. Marketability of Reed Type Frequency (RTF) meters:The primary issue was whether the RTF meters cleared by the appellant EEW were semi-finished goods and therefore not marketable. The Commissioner relied on Rule 2(a) of the Central Excise Tariff, which includes incomplete or unfinished goods that have the essential character of the complete or finished goods. The Commissioner found that the RTF meters had acquired the essential character of frequency meters and were sold as such to the appellant AE. This established their marketability. The Supreme Court's judgment in A.P. State Electricity Board v. Collector of Central Excise was cited, which states that marketability is an essential question of fact and goods are considered marketable if they are available for purchase, even from a single source. Therefore, the Commissioner's conclusion that the meters were marketable was upheld.2. Eligibility for exemption under small scale industries exemption Notification 175/86:The appellants argued that the RTF meters were semi-finished and thus should be exempt under Notification 175/86. However, the evidence showed that the meters were embossed with the 'AE' logo and were sold to AE, indicating they were not semi-finished. The Supreme Court's decision in Astra Pharmaceuticals (P) Ltd. v. C.C.E. was referenced, but the tribunal found it inapplicable as the appellants could not substantiate that 'AE' was merely a house name and not a brand name. Therefore, the meters were not eligible for exemption under Notification 175/86, and duty was payable.3. Classification of RTF meters under the Central Excise Tariff Act:The Commissioner classified the RTF meters under sub-heading 9030.00 of the Central Excise Tariff Act, 1985, even if they were in semi-finished condition. This classification was based on the essential character of the meters as frequency meters, which was upheld by the tribunal.4. Affixation of brand name and its implications:The appellants contended that the 'AE' marking was a house name, not a brand name. However, statements from the proprietor of EEW and a commercial officer of AE indicated that 'AE' was indeed used as a brand name on the meters. The tribunal did not find the Supreme Court's decision in Astra Pharmaceuticals applicable, as no evidence was provided to distinguish a product mark from a house mark. Thus, the affixation of the 'AE' brand name meant that EEW could not claim exemption under Notification 175/86.5. Imposition of duty and penalties:The Commissioner confirmed a duty demand of Rs. 1,36,763.80 on EEW under Section 11A of the Central Excise Act and imposed a penalty of Rs. 10,000/- under Rule 173Q. The plant and machinery of EEW were ordered to be confiscated with a redemption fine of Rs. 10,000/-. The tribunal upheld the duty demand but reduced the penalty from Rs. 10,000/- to Rs. 2,000/-, and set aside the order of confiscation of plant and machinery. The redemption fine for the meters was also reduced from Rs. 50,000/- to Rs. 20,000/- and from Rs. 2,500/- to Rs. 1,000/-.Conclusion:The tribunal upheld the duty demand on EEW, confirmed the marketability of the RTF meters, and determined that the exemption under Notification 175/86 was not applicable due to the affixation of the 'AE' brand name. Penalties were reduced, and the confiscation order was set aside, providing partial relief to the appellants.