TaxTMI 
TaxTMI 
2001 (6) TMI 276
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.... them or under Heading 84.83 as classified by the Collector; whether they are affixing their goods with brand name "LMS" of another person so as to make them ineligible for the benefit under Notification No. 175/86-C.E., dated 1-3-1986 and whether M/s. LMS Marketing Pvt. Ltd., are their related persons in terms of Section 4(4)(c) of the Central Excise Act. 2. Shri Kamal Trivedi, learned Advocate, alongwith S/Shri Uday Joshi and Jitendra Singh, learned Advocates, submitted that the appellants manufacture, inter alia, Name Writer Machines and different types of gears; that Shri Surendra L. Shah, Proprietor, is one of the Directors in M/s. LMS Foundries Pvt. Ltd. incorporated on 16-4-1974 in the memory of his late father Shri Laxmi Cha....
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....ot under Heading 84.83. 4. Finally he submitted that the Adjudicating Authority erred in concluding that there is a mutuality of interest between the appellants and M/s. LMS Marketing Pvt. Ltd.; that the various grounds mentioned in para 5.2 of the impugned order are not only misconceived but are not borne out from the evidence on record; that the extended period of limitation is not invokable as there was no suppression on their part; that no penalty is imposable as the impugned order is totally against the provisions of law. 5. Countering the arguments, Shri R.C. Sankhla, learned DR, mentioned that the issues regarding use of Brand Name and Marketing Company being the related persons have been decided by the Tribunal in th....
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....oods included in any of the Headings of Chapter 84 or 85 (other than Heading Nos. 84.09, 84.31, 84.48. 84.66, 84.73 84.85, 85.03, 85.22, 85.29, 85.38 and 85.48) are in all cases to be classified in their respective headings. Accordingly we hold that gear are classifiable under Heading 84.83 of the Tariff. 7. Regarding the question of LMS being Brand Name, we find that similar arguments were advanced by the appellants in the case of Narendra Machine Works (P) Ltd. [2001 (128) E.L.T. 118 (Tribunal) and the Tribunal held as under :- "10. Regarding the use of Brand Name "LMS" we find that it has been contended by the ld. Advocate that "LMS" is not a Brand Name as it is an abbreviated form of the name of he father of Shri Surendra ....
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....the machines. We also observe that the Commissioner in the impugned order has given his finding that Shri Nilesh R. Doshi and Shri Surender L. Shah had never retracted their statements which were recorded under Section 14 of the Central Excise Act and they being the Chief Executive and Director of the Appellant there is no reason to disbelieve the deposition made by them. We are, therefore, of the view that the Appellants are not eligible to the benefit of exemption under Notification No. 175/86 in respect of excisable goods manufactured by them and affixed with Brand Name 'LMS'. The extended period of limitation is also invokable as the fact of affixing Brand Name LMS was not disclosed to the Department." Applying the ratio of this deci....