TaxTMI 
TaxTMI 
2009 (8) TMI 143
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....r dated 28-4-2004 [2004 (169) E.L.T. 215 (Tri. - Del.)] and order dated 2-12-2004, passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for brevity, 'the Tribunal) in respective cases. The facts are being referred from C.E.A. No. 48 of 2005. 2. Brief facts of the case are that M/s. Special Machiners-respondent was having three separate Units in Karnal and engaged in the manufacture of welding electrodes, plants & machinery and flux, falling under Chapters 83, 84, 85, 38 and 29 of the Schedule attached to the Central Excise Tariff Act, 1985 (for brevity, 'the Tariff Act'). It was also holding L4 Licences for manufacturing of said products. M/s. Industrial Products, M/s. Modern Equipments and M/s. S.M. Welding Elect....
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....tial ingredient required for the manufacture of welding electrodes, through his other concern, namely, M/s. Perfect Industries. However, no stock register was being maintained but only invoices were raised. It was also found that Modern Equipments and S.M. Welding Electrodes were manufacturing some of the brands owned by the respondent under royalty agreement. 4. It was further found by the department that the aforementioned different units were also lacking basic infrastructural facilities which were required for carrying on independent functioning. The production staff of all the units was common and the office work was being performed by the staff of the respondent. On the pretext of research and development (R&D), in the R&D Laborato....
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.... after adjudication confirmed the demand of Rs. 77,08,165/- against the respondent under Section 11A(1) of the Act and also raised demand of interest on the said amount under Section 11B of the Act. A penalty of Rs. 5,00,000/- under Rule 1 73Q of the Rules was also imposed (P-1) 6. The respondent preferred an appeal against the Order-in-Original, dated 14-2-2002, before the Tribunal. The Tribunal has held that there cannot be any objection for use of brand name, if the brand name users pay the royalty to the brand name owner. The Tribunal allowed the appeal of the respondent vide Final order dated 28-4-2004 (P-2), which is subject matter of challenge in the instant appeal. 7. The revenue-appellant by filing CM. No. 5983-CII of 2006. h....
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....turer using the brand names, registered or unregistered, of another person, in terms of the two decisions (supra) of the Hon'ble Supreme Court and in terms of para 4 and para 5(A) of the above notification? (ii) Whether the extended time limit as prescribed under Section 11A of the Act has been rightly invoked in the show cause notice in view of the respondent No. 1 not disclosing to the Department the use of brand/trade name of another person?" 9. The assessee-respondent in both the aforementioned appeals, filed two separate applications, namely. CM. No. 16933-CII of 2009 in CEA No. 48 of 2005 and CM. No. 17074-CII of 2009 in CEA No. 120 of 2005, raising various preliminary objections regarding maintainability of appeals. It has been....
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....ned counsel for the parties and perusing the paper book with their able assistance we are of the considered view that there is merit in the preliminary objections raised by the assessee-respondent regarding maintainability of the appeal. A similar controversy whether an assessee is covered by an exemption notification relating to rate of duty or not came up for consideration before a Division Bench of this Court in the matter of Commissioner of Central Excise, Ludhiana v. A.S.T. Paper Mills Ltd., 2008 (227) E.L.T. 189 (P&H). The Division Bench after discussing the matter in detail, especially in the light of judgment of Hon'ble the Supreme Court rendered in the case of Navin Chemicals Manufacturing and Trading Company Limited v. Collector o....