TaxTMI 
TaxTMI 
1998 (5) TMI 253
X X X X Extracts X X X X
X X X X Extracts X X X X
....scribed for the purpose. The weighing scales ready for clearance were seized as the officers found that upon switching on the scales the visual fluorescent display of the machine displayed the words "AVERY" for a few seconds before displaying ready to use "00" position. "AVERY" is the brand name of the other Appellant herein. So the officers took the view that Appellants Precision Scales have manufactured weighing scales with AVERY brand name, and since Avery India is not a Small Scale Unit eligible for exemption under Notification No. 175/86 and its successor Notification No. 1/93, the Appellants Precision Scales have wrongly availed of the exemption. This is because para 7 of Notification No. 175/86 and para 4 of Notification No. 1/93 barred the exemption under the Notification to the specified goods where the manufacturer affixes the specified goods with the brand name/trade name of another person who is not eligible for the exemption under the Notification. After further investigation show cause notice was issued for demanding duty Rs. 14,80,576/- for the period 1992-93 up to June 1994 as Appellants Precision Scales are not entitled to the exemption. The notice also proposed to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ants Precision Scales. Reliance in this regard has been placed on Tribunal decision in the case of Trimurti Weld Mesh v. C.C.E. - 1994 (64) E.L.T. 419 and it was submitted that appeal against it by the Revenue has been dismissed by the Supreme Court 1996 (82) E.L.T. A-168. 4. We find that in the Tribunal's decision the Department had denied exemption Notification No. 175/86 in terms of para 7 thereof because the SSI unit therein manufactured motor vehicle parts out of forgings on which already the brand name of a trader was embossed. In the order of the Commissioner (Appeals), which was set aside by the Tribunal, it was noted that Notification 175/86 did not originally have the provision as in Para 7 which was added later by an amendment Notification No. 223/87, dated 22-9-1987 and the Commissioner (Appeals) observed that it was clear that the object of the provision was to prevent misuse of the exemption by ineligible persons by getting their branded goods manufactured by an SSI Unit, and because of this discernible objective of the permission the Commissioner (Appeals) held that the wording of para 7 needs to be interpreted giving wider connotation to the wording thereof ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ithout any indication of the identify of that person.' Now, what does para 7 provide and why ? It provides that the benefit of Notification No. 175 shall not be available to a small manufacturer, who affixes the brand-name or trade-name (registered or not) of another person, who is not eligible for the grant of exemption under the said notification. Explanation VIII defines the expressions "brand-name or trada-name". The Explanatory Note appended to the notification states that "(T)his amendment seeks to deny small scale exemption in respect of specified goods affixed with the brand name/trade-name of a person who is not eligible for the exemption under Notification No. 175/86-C.E., dated 1-9-1986." The object underlying Para 7 is self evident. If a small manufacturer who affixes the brand-name or trade-name of an ineligible manufacturer (a convenient expression to denote a manufacturer outside the purview of Notification No. 175 of 1986 and who owns or entitled to use a brand-name or trade-name), the very raison d'etre for granting the exemption disappears. The exemption is designed to enable the small manufacture to survive in the market in competition with the ineligible manu....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... not be attracted. Even otherwise, it is evident from the records that in respect of PS-7 model scales manufactured by appellant Precision Scales, the scale and head up display are cleared together and on the head-up display of these scales monogram of AVERY is printed which clearly would show clearance of the scales affixed with Avery brand name. We also find no substance in the argument of the Appellant that the letters appearing in the weighing scale display is not the same as the registered brand name of Avery. This is because in their own printed instruction manual of the scales for use by their customers, it has been indicated, that on pressing the key Avery Scale will be displayed before the scale sets to zero. In the result, we hold that the Appellant Precision Scales has been rightly held to be ineligible for exemption under Notification No. 175/86 and its successor Notification No. 1/93 as amended. 7.  The Department, we find is also justified in invoking the longer period under Section 11A of Central Excise Act to demand duty as the display of Avery brand name on the scales had been the result of a conscious arrangement between these two Appellants and the Korean....