TaxTMI 
TaxTMI 
2009 (6) TMI 483
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....orative and industrial Laminates Ltd. Admittedly M/s. Rammaica (India) Ltd., was not entitled to the exemption of payment of excise duty whereas the respondent being a small scale industry would be entitled to the concessional rate of duty, if otherwise eligible. 3. Revenue on information received intercepted a lorry and seized goods belonging to the respondent, on which the mark "Ram's" was used. A show cause notice was issued on 21st April, 1995. On 11th August, 1997 an order came to be passed by the Commissioner, confirming the demand of Central Excise Duty in the sum of Rs.44,39,794/- and a penalty of Rs.44.00 lakhs. A direction was given to appropriate the bank guarantee of Rs.6.00 lakhs for the release of the goods. The Respondents aggrieved preferred an Appeal before the CESTAT. The Tribunal by its order dated 31st December, 2002 allowed the Appeal. The Revenue preferred Civil Appeal to the Supreme Court, being Civil Appeal No. 5383-84/2004 against the order of CESTAT. The Supreme Court remanded the matter back, to decide the issue of limitation by its order of 30th September, 2004 [2004 (173) E.L.T. 225 (S.C.)]. By order dated 10th September, 2007, CESTAT set aside the d....
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.... specified in the notice. Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, as if for the words one year, the words 'five years' were substituted....." It would thus be clear that two periods of limitation are set out. In a case where duty of excise has not been levied or not paid or short-levied or short-paid or erroneously refunded or the like, a power is conferred on the Central Excise Officer within one year from the relevant date to issue show cause notice why the assessee should not pay the amount specified in the notice. The proviso, however, sets out that in a case where duty has not been levied or paid or short paid or erroneously refunded by reason of fraud; collusion or any wilful mis-statement or suppression of facts or contravention of any of the provisions of the Act or of the Rules made thereunder,....
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....e circumstances the Tribunal was right in holding that it was a contentious issue. 10. A few additional facts may also be set out. A show cause notice was issued amongst others to the Respondents dated 20th April, 1995 on the basis that they have suppressed the fact of affixing their goods with labels containing the monogram of "Ram's", registered in the name of M/s. Rammaica (India) Ltd. Considering the reply filed the Commissioner by his original order dated 21-7-1997/61 on the admission by Shri Rambtar Jhunjhunwala, Director of the assessee company held that affixing of sticker and monogram of 'Ram's' was never informed to the Central Excise Department. The matter ultimately reached the Supreme Court at the instance of Revenue. That appeal was disposed off with various other Appeals and the orders were set aside and the matters were remanded. While disposing of the Appeal the Supreme Court noted that the object of the notification was clear, which was, to grant benefits only to those industries which otherwise do not have advantage of a brand name. The Supreme Court also dealing with the apprehension of the assessees that they may be denied exemption merely because some other....
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....rly sets out, that where a manufacturer affixes the specified goods with a brand name or trade name of another person who is not eligible for the grant of exemption under this Notification, then they are not entitled to the exemption. The issues which came up before the Tribunal were not on the use of the trade name of an assessee by another who was not eligible for exemption. Some of the cases were in respect of the same brand name used by two different persons. At any rate irrespective of this and what the Tribunal held the order of the larger Bench was ultimately set aside by the Supreme Court. Clause 7 in our opinion is clear and explicit. The issue of entitlement to benefit when the same brand name or make was used by two persons was clarified by the Circular of the Board in 1988, before the Respondent herein began its manufacturing operations. In the instant case the Respondents admittedly was using the mark of another company, may be a group company. That group company was not eligible for exemption. To contend that this is a contentious issue, in our opinion, is begging the issue. Similarly, in so far as Clause 4 of the Notification dated 28th February, 1993, it is clear th....