TaxTMI 
TaxTMI 
2011 (5) TMI 483
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....y involved. 1.2 Appeal No. E/1304/2005 is by M/s Karam Machine Tools against the order of the Commissioner (Appeals) No. 702/CE/APPEAL/Ldh/2004 dated 31.12.2004 arising out of same order-in-original No. 27 & 28/CE/ADC/2003 dated 29.10.2003. Appeal No. E/1143/2005 is by the department against the same impugned order seeking enhancement of penalty equal to duty involved. 1.3 As all these four appeals, two by the parties and two by the department arise out of common order-in-original and involve common facts, they are being disposed of by this common order. 2. The relevant facts, in brief, are that the brand name KARAM belong to M/s Guru Nanak Engineering Works. During the relevant period this brand name was not registe....
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....ssioner (Appeals) set aside the order of the original authority and confirmed the demand of duties as proposed in the show cause notices and imposed penalty of Rs. 5 lakhs on M/s Karam Machine Tools and a penalty of Rs. 1 lakh on M/s Karam Industries following the decision of the Hon ble Supreme Court in the case of CCE, Chandigarh vs. M/s Mahan Dairies reported in 2004 (166) ELT 23. The parties are in appeal challenging the very demands of the duty and imposition of penalties. The department is in appeals seeking enhancement of penalties to amounts equal to the duty demanded. 3.1 Learned Advocate submits that the brand names used by the appellant parties are different from the brand name KARAM used by M/s Guru Nanak Engineering Wor....
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....s parts which did not bear any brand name. The original authority did not consider this issue as he has dropped the proceedings on other grounds. He also submits that Commissioner (Appeals) has decided the matter ex-parte in as much they have not received notice of hearing. He also submits that in both the cases they have claimed that the show cause notices proposed duty on the invoice values which should be treated as cum-duty price in the event of demand being upheld and the said benefit has not been extended to them. 3.4 Learned Advocate relied on the decision in the case of CCE, Ahmedabad vs. Premier Polymers reported in 2011 (266) ELT 365. The facts of the case are different from facts of the present case. 4.1 Learned S....
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....involved in terms of Section 11AC of the Act. 4.2 Ld. SDR relied on the decision of Hon ble Supreme Court in CCE, Trichy vs. Rukmani Pakkwell Traders reported in 2004 (165) ELT 481 (SC) and decision in the case of CCE, Chandigarh-II vs. Bhalla Enterprises reported in 2004 (173) ELT 225 (SC) and the decision in the case of CCE, Chandigarh-I vs. Mahaan Dairies reported in 2004 (166) ELT 23 (SC) in support of her claim that the appellant parties are not eligible to avail the benefit of small scale exemption having used the brand name of third parties. She relied on the decision of the Hon ble Supreme Court in the case of Union of India vs. Rajasthan Spinning & Weaving Mills reported in 2009 (238) ELT 3 (SC) to submit that mandatory pen....
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....ely on any evidence to show as to who was the actual owner of the brand. In such a situation, the Tribunal did not find the allegation that the party therein used the brand name of another party as substantiated. We have not been shown any evidence that the appellants have filed necessary declarations and brought these relevant facts before the excise authorities before claiming and availing the exemption and before opting out of registration as a Central Excise assessee. Therefore, on merits, we hold that the appellant parties have used the brand name KARAM which belonged to a third party and, therefore, the decision of the Commissioner (Appeals) holding that the appellant parties are not eligible for exemption does not called for any inte....