TaxTMI 
TaxTMI 
1993 (8) TMI 204
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....ministration. He died about 9 months ago. (ii) Letter No. OE. No. 1230, dated 18-8-1990 from the Supdt. of Central Excise, Amberpet Range. This letter contains an endorsement by Shri Apparao who was officer in charge of excise and administration. He died about 9 months ago. (iii) Letter AW/89-90, dated 27-9-1989 with enclosures submitted by the Supdt. by the petitioner." These documents are admitted as additional evidence. When the Misc. application was taken up on 8-7-1993, the learned Advocate had pleaded among other things as under : "It was submitted that in the interests of justice the additional evidence submitted by the petitioner which are only statutory records and documents available already in the file of the Department should be considered. It was also submitted that brand name is specifically mentioned in the classification list and the biscuit factory and the wafer factory are situated close by coming under the jurisdiction of the same Supdt. of Central Excise and also Asstt. Collector of Central Excise who visited the factories. It was submitted that the petitioner in the correspondence sent to the Department has clearly mentioned about the manufactu....
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.... in doubt as to whether wafers and biscuits are same article or two different products. It was only later that they felt that wafers had to be taken to be biscuits and therefore, the appellant's products were hit by para 7 of the Notification No. 175/86 under which if a manufacturer manufactured goods with the brand name of another, the manufacturer was not entitled to the benefit of the Notification 175/86 and his goods would not be eligible for the benefit of the said notification. The learned Advocate cited the case law 1989 (40) E.L.T. 472 in support of his plea. 4. The learned S.D.R. pleaded that it was within the knowledge of the appellants that a sister concern of theirs was manufacturing the biscuits with `Asoka' brand name and they should have mentioned this fact in the classification list and in the declaration filed. Not having done that he pleaded the appellants as held by the learned lower authority should be taken to have suppressed the fact. He further pleaded that the fact that the two units are in the proximity of each other does not by itself should be taken as circumstance attributing knowledge to the authorities about the use of the brand name `Asoka' be....
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....not given any finding that any portion of this declaration is wrong and has observed as under : "Their failure to reiterate the constitution of the appellants with identical partners, cannot, per se, be an act of "fraud" or "wilful mis-statement" or "suppression of facts" in terms of Section 11A(1) proviso of the Central Excises and Salt Act, 1944. "Fraud" has not only to be alleged but particulars thereof have necessarily to be furnished by the Department." The grievance of the lower authority is that the appellant did not make it known in the classification list that M/s. Asoka Biscuits were also using the brand name `Asoka' and hence, therefore, guilty of suppression and demanded duty invoking longer period of limitation and demanded duty on the ground that in terms of para 7 of Notification 175/86, the exemption contained in this notification shall not apply to the specified goods where a manufacturer affixes the specified goods with a brand name or trade name (registered or not) of another person who is not eligible for the grant of exemption under this notification. There is no discussion in the order as to whom in fact the brand name `Asoka' belongs. The appellant's pl....
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....fficers controlling the two units would be aware of the range of the products manufactured by the two units and the use of the brand name `Asoka' on their products. The officers, as seen from the documents, filed before us had also on 17-8-1989 and 27-8-1989 addressed to the appellants calling for the wrappers used by the appellants and the appellants had supplied the copies of the same. The learned SDR, however, in this regard stated that the Department was also investigating as to whether wafers and biscuits are the same article. If that be so there is nothing wrong in the appellants assuming that their product was different from that of the other firm, viz. Asoka Biscuits. Both the Department and the appellants appears to have been labouring under the misconception that only when the brand name used is that of the same product the goods would fall within the mischief of para 7 referred to supra of Notification No. 175/86. We observe as it is no such inference can be drawn from the reading of this para 7 of the notification which merely envisages that if the brand name used of any other person then the goods in question would not be covered by the Notification No. 175/86 and woul....