TaxTMI 
TaxTMI 
1998 (4) TMI 304
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....lants to B.R.C. The trade-mark of `Duckback' owned by the appellant firm is affixed on those footwears. Technical assistance, quality control and consultancy services are provided by the appellant firm and 10% of the capital subscribed is financed by the appellant firm. It is also alleged that the loan obtained by B.R.C. is secured through the guarantee of the appellant firm and one of its Directors. 2. After manufacture of the goods by B.R.C. in its factory at Ranchi, the goods are sold to the appellant firm who in turn market the entire quantity so received by B.R.C. 3. A show cause notice was, therefore, issued to the appellant firm that footwear manufactured by B.R.C. during the period from 1-8-1977 to 31-5-1981 was liab....
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....isable goods. In order to appreciate the contention of the learned Advocate, we reproduce below the said Notification as amended on 9-8-1977 :- "In exercise of the powers conferred by sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, and in supersession of the notification of the Government of India in the Department of Revenue and Banking No. 103/76-Central Excises dated the 16th March, 1976, the Central Government hereby exempts footwear falling under sub-item (1) of Item No. 36 of the First Schedule of the Central Excises and Salt Act, 1944 (1 of 1944), from the whole of the duty of excise leviable thereon : Provided that- (i) such footwear is produced by or on behalf of a manufacturer in one or more factories, including....
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....t be treated as a manufacturer of the goods manufactured by B.R.C. for the period from 9-8-1977 to 31-5-1981 and only B.R.C. is to be treated as a manufacturer. The other factors considered to be relevant by the Commissioner, holding the appellant firm as a manufacturer, submits the learned Advocate, are not at all germane to the question of the appellant company being the manufacturer herein. He also points that in fact, the raw materials were purchased by the B.R.C. from the appellant firm. Then the finished goods namely the footwear, were sold by the B.R.C. to the appellant firm. B.R.C. is also selling similar type of footwear in the market, though not affixed with the brand-name of the appellant, on its own. In aforesaid facts and circu....
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....nt firm is the real manufacturer of the goods carrying the brand-name of the appellant firm, though not actually fabricated by B.R.C. 10. As regards the time-bar, leared S.D.R. submits that allegations have been made in the show cause notice that the appellant firm removed the goods without payment of duty, without filing of classification list, without filing price-list and without filing any return or performing any other Central Excise formality under the Central Excise Rule, 1944. He also submits that it need not be specifically mentioned in the show cause notice using the words - "wilful mis-statement or suppression of facts or contravention of any Rules with intent to evade payment of duty" - so long as the implication of the ....
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....tion in law today. Consequently, we hold that the appellant firm is not a manufacturer of goods for the period from 9-8-1977 to 31-5-1981 and therefore, they do not have any liability to pay any duty on the goods manufactured by B.R.C. during the aforesaid period. 12. However, the appellant firm will be a manufacturer of the goods during the period from 1-8-1977 to 8-8-1977 inasmuch as the explanation to Notification No. 88/77-C.E. as it stood during that period, was in the following terms :- "Explanation. - Where footwear, manufactured by a manufacturer, is affixed with a brand or trade name, registered or not, of another manufacturer, it shall be deemed to have been manufactured by or on behalf of such other manufacturer." 1....