TaxTMI 
TaxTMI 
2013 (9) TMI 54
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....ral Excise Tariff Act, 1985. M/s. Jayant Machine Tools were registered with the department but M/s. Yash Machine Tools were not. However, they were availing the benefit of SSI exemption under Notification No. 8/2003-C.E., dated 1-3-2003. 3. It was detected by the department that they were using the brand name "Vivek" which was owned by M/s. Vivek Machine Tools manufacturing identical machines. The department's view was that the appellants were using the brand name of another person and the factory was not located in a rural area. Therefore the exemption under Provision 4 of Notification 8/2003 dated 1-3-2003 was not available to them. The case was adjudicated by the Commissioner of Central Excise, Rajkot, confirming the demand, charging ....
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.... (a) ...................... (b) clearances bearing the brand name or trade name of another person, which are ineligible for the grant of this exemption in terms of paragraph 4; (c) ...................... (d) omitted w.e.f. 1-4-2008 (e) ...................... 4. The exemption contained in this notification shall not apply to specified goods bearing a brand name or trade name, whether registered or not, of another person, except in the following cases :- (a) where the specified goods, being in the nature of components or parts of any machinery or equipment or appliances, are clear....
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.... of Section 14 of the Central Excise Act, 1944, that the brand name "Vivek" belonged to them and is owned by them, itself demolished the noticee's contention that the said brand name is a family brand name. Noticee No. 1 has also not brought any evidence on record to indicate whether the said brand name "Vivek" is either the name of a person in their family or the abbreviated form of some other person(s) in the family to support their contention that it is a family brand." 8. After examining catena of judgments/orders of various Courts and Tribunals, the original adjudicating authority concluded that there was a misuse of the object and SSI exemption schemes contained in the said notification which was primarily to disentitle a manufactu....
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....ssue in the case of Bhavna Industrial Corporation v. CCE, Rajkot reported in 2009 (248) E.L.T. 660 (Tri.-Ahmd.) this Bench has observed as follows : "2. Further, demand of duty of Rs. 9,827. - stands confirmed against the appellants on the findings that they have used the brand name "Anil" which belongs to M/s. K. Rasiklal & Company. The appellants have contested that "Anil" was their family Brand Name and upon distribution of work, as per the agreement, all the three parties were allowed to use the same. This fact does not stand disputed by the Commissioner (Appeals) but he has rejected it on the ground that Central Excise law does not permit such mutual bestowing upon right to use the brand name. However, we find that with the Memorand....
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.... of Notification No. 1/93-C.E." 11. It is also relevant to consider the observations of the Hon'ble Supreme Court in the case of CCE, Chandigarh v. Bhalla Enterprises reported in 2004 (173) E.L.T. 225 (S.C.) wherein it was held as under : "6. The apprehension of the assessees that they may he denied the exemption merely because some other traders even in a remote area of the country had used the trade mark earlier is unfounded. The notification clearly indicates that the assessee will be debarred only if it uses on the goods in respect of which exemption is sought, the same/similar brand name with the intention of indicating a connection with the assessees' goods and such other person or uses the name in such a manner that it would in....
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....nership of the family and no person will ever stop any family from using such brand name. 14. On the issue of extended time limit, we have considered the Hon'ble Supreme Court's judgment in the case of Collector v. Intercity Cables System (P) Ltd. [1996 (88) E.L.T. A68 (S.C.)] wherein the Hon'ble Court has categorically stated; "the Appellate Tribunal further held that since in terms of rule 173B of the Central Excise Rules, 1944 no responsibility was cast on the appellants to declare the trade name or brand name affixed by them on their goods, the extended period of limitation is not invocable in their case and accordingly the impugned order confirming the demand for the period beyond six months under the proviso to Section 11A of Ce....