2004 (10) TMI 398

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....rson and whether the demand of duty is hit by time-limit. 2. Shri Bipin Garg, learned Advocate, mentioned that the Appellants manufacture rigid PVC pipes and avail of benefit of small-scale exemption under Notification No. 9/98-C.E., dated 2-6-1998 and subsequent Notifications for payment of duty at concessional rate; that the Commissioner has disallowed the benefit of the Notification on the ground that the goods manufactured were bearing the brand name of others. The learned Advocate submitted that the mischief of Para 4 of the Notification relating to brand name will apply only when the brand names used by the Appellants belong to another person; that there is no proof with the Revenue to prove that the brand names used by them b....

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....transport so that the pipes are delivered to the correct customers. 3. The learned Advocate also contended that the demand for the period November, 1998 to October, 2001 is time-barred [subject-matter of Appeal No. E/1878/03-NB(B)] since they had filed declaration under Rule 173B of the Central Excise Rules wherein they had clearly mentioned "Siddhartha" and "Varuna" as their brand and nothing was suppressed; that moreover Range Superintendent had issued a show cause notice dated 29-10-1999 proposing to deny exemption benefit under Notification No. 9/99 for the period from 1-4-1999 to 30-9-1999 and demand of duty was confirmed by the Deputy Commissioner under Order-in-Original No. 271/2000 dated 30-11-2000; that the principle of res....

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..... He also contended that Board's Circular dated 1-9-1994 is not applicable to them as the Appellants had not brought any material to show that identical brand name has been affixed in respect of more than one buyer; that in the present matters, they are the manufacturers who manufacture specified goods and affix brand names as desired by the customers, i.e., a particular brand; that as the goods of a particular brand name had been supplied to a particular buyer, the denial by these customers is no relevant and what was the necessity to take such certificates from these customers in 1998 and 1999 if the brand names did not belong to them. He mentioned that the decisions relied upon by the learned Advocate are not applicable as the facts are ....

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....question do not belong to the other units such as S.T.L. Extrusion Pvt. Ltd., Raj Enterprises, etc., there was no necessity to take a certificate from them in 1998-1999 about not owning the brand name and no objection if some other person uses the same brand name. 6. Board's Circular dated 1-9-1994 does not advance the case of the Appellants at all. In this Circular, the Board was considering the practice in lock industry to use a name or mark though such mark or name is not owned by any particular person. It has been advised by the Law Ministry that the names being used in the manufacture of locks by small-scale units do not belong to any particular manufacturer and any unit is free to use any name and as such there was no connecti....