TaxTMI 
TaxTMI 
TaxTMI 
2010 (12) TMI 25
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....or TATA 310 vehicle. The assessee filed declaration Nos. 545/96 w.e.f 4th November 1996; 104/97 w.e.f. 25th March, 1997; 105/97 and 106/97 w.e.f. 1st April 1997, claiming the benefit of SSI Notification Nos. 1/93 and 16/97. 3. A raid was conducted at the premises of the assessee, which resulted in issuance of a show cause notice dated 13th May, 1998 to the assessee asking them to explain as to why duty amounting to 1,46,151/-; and penalty under Rules 9(2), 173Q and 226 of the Central Excise Rules, 1944 (for short "the Rules") together with penalty under Section 11 AC of the Act may not be levied on them, for clearing branded goods of another person. 4. The Additional Commissioner of Central Excise (for short "the Adjudicating Authority"), vide Order-in-Original No.06 dated 3rd June, 1999, while confirming the duty and penalty as contained in the show cause notice, observed that: "Any person who buys the product, it is the TATA brand name which will strike the eyes of the buyer first as it is a well known and established brand name rather than the other logo ACE. As such going by the Tribunal decision cited by the party the case has to be decided against them.........................
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....on shall not apply if the specified goods are bearing the brand name of another person. It is not the case of the Revenue that Tata Ace' is the brand name of another person. The very fact that there is no material to prove that the brand name, which the excisable goods manufactured by the respondents bear, belongs to another person, the mischief of Para 4 of the Notification No. 1/93 will not be attracted. ......................................................... .................... We also find substance in the finding of the Commissioner (Appeals) that the usage of the name Tata' in the brand name is with a view to indicate that the part is for a particular vehicle manufactured by Tata." 7. Hence, the present civil appeal. 8. Mr. B. Bhattacharya, learned Additional Solicitor General appearing on behalf of the Revenue, while assailing the impugned order, urged that in light of the decisions of this Court in Commissioner of Central Excise, Calcutta vs. Emkay Investments (P) Ltd. and Anr.[ (2005) 1 SCC 526] and Commissioner of Central Excise, Chandigarh-I vs. Mahaan Dairies [(2004) 11 SCC 798], it is settled that whenever the assessee affixes the brand name of another person on....
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..... (supra), learned counsel submitted that mere use of the word "TATA" should not disentitle the assessee from the benefit of the two Notifications. Learned counsel further urged that the Revenue's argument that the use of the word "TATA" would create an impression in the minds of the consumer that the said product was manufactured by one of the Tata companies was misplaced in as much as no such test was envisaged under the Notifications. Moreover, the Revenue had not made any such allegation in the show cause notice, and in light of the decisions of this Court in Commissioner of Customs, Mumbai vs. Toyo Engineering India Ltd. [(2006) 7 SCC 592] and Commissioner of Central Excise, Nagpur vs. Ballarpur Industries Ltd. [(2007) 8 SCC 89], it is trite that the foundation of the Revenue's case is laid in the show cause notice, and the same must be confined to the allegations contained therein. 10. Before adverting to the rival submissions, it would be useful to extract relevant portions of Notification No. 1/93-CE dated 28th February, 1993 as amended, which grants exemption from payment of Central Excise duty to small scale industrial units. It read as: "4. The exemption contained in t....
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....posely not used. The framers were aware that use of a brand/trade name is generally to show to a consumer a connection between the goods and a person. The framers were aware that goods may be manufactured on order for captive consumption by that customer and bear the brand/trade name of that customer. The framers were aware that such goods may not reach the market in the form in which they were supplied to the customer. The framers were aware that the customer may merely use such goods as an input for the goods manufactured by him. Yet clause 4 provides in categoric terms that the exemption is lost if the goods bear the brand/trade name of another. Clause 4 does not state that the exemption is lost only in respect of such goods as reach the market. It does not carve out an exception for goods manufactured for captive consumption. The framers meant what they provided. The exemption was to be available only to goods which did not bear a brand/trade name of another. The reason for this is obvious. If use of brand/trade names were to be permitted on goods manufactured as per the orders of customers or which are to be captively consumed then manufacturers, who are otherwise not entitled....