TaxTMI 
TaxTMI 
2010 (2) TMI 621
X X X X Extracts X X X X
X X X X Extracts X X X X
....ants' company is engaged in manufacture of Ordinary Portland Cement falling under sub-heading 25231910 of the first schedule of the Central Excise Tariff Act, 1985 from clinker which is either manufactured in its own factory or procured from outside. In the course of the audit of the records maintained by the appellants carried out in the month of October '07, it was observed that the appellants had been manufacturing Ordinary Portland Cement and had been paying concessional rate of duty by availing the benefit of Notification No. 4/2006-C.E., date. 1-3-2006. In order to avail the benefit of concessional rate of duty, the appellants was required to fulfill the conditions laid down under the said notification and in particular S. No. 1(i) thereof. The said condition required the manufacturer to make a declaration to the Dy. Commissioner of Central Excise or the Assistant Commissioner of Central Excise having jurisdiction regarding installed capacity of the factory before availing of exemption under the said notification and to furnish such information or documents, if any, as may be required by the Excise Officer for his satisfaction in that regard. As no such declaration was produc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hwa Chemicals Private Ltd. v. CCE, Delhi reported in 2005 (189) E.L.T. 257 (S.C.) and Gopal Zarda Udyog v. CCE, New Delhi reported in 2005 (188) E.L.T. 251 (S.C.) in relation to the point raised pertaining to bar of limitation. Reliance is placed in the decision in the matter of CCE, Goa v. Primella Sanitary Products reported in 2005 (184) E.L.T. 125 (S.C.) and CCE, Chennai v. Sree Ram Perfumery Works reported in 2009 (241) E.L.T. 89 in relation to the entitlement for benefit under the Notification and in the matter of CCE, Indore v. Siddharth Tubes Ltd. reported in 2004 (170) E.L.T. 331 in support of contentions about illegality in confirming the demand in relation to the second show cause notice pertaining to the same period. 6. Learned Advocate appearing for the appellants drawing our attention to the copy of the agreement between M/s. Kamdhenu Ispat Ltd. and the appellants as also the copies of invoices relating to the product manufactured by the appellants submitted that the respondent erred in accusing the appellants of suppression of facts when it was to the knowledge of the audit party and other officers of the Department that the appellants had been clearing the prod....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... notification clearly reads thus - "If the cement manufacturer makes a declaration to the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, having jurisdiction regarding the installed capacity of the factory before availing of exemption under this notification or wherever there is a change in the said capacity, and furnishes such information or documents, if any, as may be required by the Deputy Commissioner or the Assistant Commissioner, as the case may be, for his satisfaction in this regard". 9. Obviously the manufacturer is not entitled to claim exemption suo motu without proper intimation. In that regard however, the condition clearly specifies that the manufacturer has to make declaration prior to availment of the exemption. The condition not only provides for the obligation of the manufacturer to make such declaration but also discloses the purpose for which such declaration is required to be, made by the manufacturer. The condition specifies that pursuant to such declaration, the Excise Officer may call for necessary information and documents from the manufacturer for the purpose, of his satisfaction as regard ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....contention on behalf of the appellants in relation to first show cause notice. 12. As regards the second show cause notice, the same was issued in relation to the use of brand name of another person for the product manufactured and cleared by the appellants while claiming exemption under Notification No. 4/06. On the face of the show cause notice itself, it reveals that the fact that the name 'Kamdhenu' was the brand name of another person was revealed to the Department for the first time in February, 2008 when the statement of the appellants' Director was recorded by the Department. It was in the said statement of the appellants' Director revealed that the appellants had been using the name 'Kamdhenu Cement' for the product manufactured by the appellants, pursuant to an agreement dated15-2-2006between Kamdhenu Ispat Ltd. and the appellants. To the specific query as to whether any of the documents on records disclosed that the name "Kamdhenu Cement" belongs to some other person and this fact was revealed to the Department, the learned Advocate fairly submitted that he has not come across any such document prior to the said statement of the appellants' Director. Obviously, the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....thout any objection from the owner of the brand name. But that by itself will not result in amending the conditions of exemption notification. The exemption notification clearly requires that the benefit thereunder would not be available to the manufacturer of the cement bearing a brand name or trade name, whether registered or not, of another person. It does not make any exception when such use is permitted by the owner of the brand name. Irrespective of the fact whether the manufacturer has full consent of the owner of the brand name to use such brand name for his product or not, the use of such brand name would disentitle the manufacturer of cement from claiming any benefit under the said notification. 16. Learned Advocate for the appellants has drawn our attention to two decisions, one of the Hon'ble Supreme Court and the another of the Tribunal. The order of the Hon'ble Supreme Court in the case of Primella Sanitary Products reads thus - "This appeal is against the Judgment of the Customs, Excise and Gold (Control) Appellate Tribunal (in short "CEGAT") WZB at Mumbai dated 22nd February' 2001. 2. The short question for consideration is whether the Respondent was en....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ser of others trade name are not included under the exclusion clause. Besides, it must be noted that we are not benefited of perusing the conditions which were attached to the Notification No. 175/86 and Notification No. 1/93, In what circumstances, the Tribunal had held that so long as assignment stands, the assessee would be entitled to the benefit of notification, is also not known. 18. In Sree Ram Perfumery Works' case, the manufacturer was claiming right to use the brand name by virtue of an Assignment. Having noted the said fact, the Tribunal proceeded to observe regarding the decision ofApex Courtin Primella Sanitary Products as under : "The short question for consideration is whether the Respondent was entitled to the benefit of Notification, No. 175/86-C.E., dated 1st March, 1986 and Notification No. 1/93, dated 28th February, 1993. The only ground on A which the adjudicating authority had denied the benefit of the Notifications was that the Respondent was using on their products the words "Comfit Always" which was a registered trademark of one M/s. Christine Hodein (I) Pvt. Ltd. The adjudicating authority held that the Assisgnment dated28th June, 1987, for a consid....