TaxTMI 
TaxTMI 
2017 (2) TMI 768
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....cation No. 8/03-CE. Inquiries conducted by the Jurisdictional Central Excise officers during in December 2006 revealed the following irregularities :- (1) Goods involving duty amounting to Rs. 1,03,081/- had been cleared to M/s M.K. Enterprises without payment of duty ; (2) During 2007-2008 while duty on black disinfectant was required to be paid on value determined under Section 4A i.e. MRP minus abatement, the same was paid on transaction value under Section 4 which resulted in short payment of duty of Rs. 3,77,979/-; (3) clearance of goods bearing brand name "5 CEES" and "KILLER" were made by availing duty exemption under Notification No. 8/03-CE while this exemption was not available, as these brand names did not belong to the appellant firm, as the assignment deeds under which the appellant firm was using these brand names, had a clause mentioning that the ownership of the said trademarks at all times continue to be vested in "5 CEES India" and M/s M.K. Enterprises. Short payment of duty on this count was Rs. 3,76,736/-. 1.1 On the above basis, after issue of a show cause notice dated 10/7/09 to the appellant firm and Shri Vishal Makhija, Proprietor, M/s M.K. Enter....
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....gnment deeds from their owners; that the assignment of a brand name by its owner to a manufacturer entitles that manufacturer to SSI exemption in respect of the goods affixed with that brand name. In this regard, he relies upon the judgment of the Apex Court in case of CCE, Goa Vs. Primella Sanitary Products reported in 2005 (184) E.L.T. 125 (S.C.). He submitted that the assignment deeds were genuine, and hence, the appellant firm was eligible for SSI exemption in respect of the goods affixed with brand name "KILLER" and 5 "CEES" and hence the duty demand of Rs. 3,76,736/- is not sustainable. Thus, the duty demand of Rs. 7,54,715/- (Rs.3,77,979 + Rs. 3,76,736/-) is not sustainable. There is no justification for imposition of penalty of Rs. 1,00,000/- on Shri Vishal Makhija, Proprietor of M/a M.K. Enterprises. 4. Shri G.R. Singh, the learned Departmental Representative, reiterated findings of the Commissioner (Appeals) in the impugned order and emphasised that - (a) longer limitation period under proviso to Section 11A (1) has been correctly invoked for recovery of, short paid duty, as the appellant firm are guilty of suppression of relevant facts ; (b) the short payment of....
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.... assigned to the appellant firm under assignment deeds, on perusal of both the assignment deeds we find that both the assignment deeds mention M/s M.K. Enterprises and M/s 5 CEES India as the owners and proprietors of the brand name "KILLER" and "5 CEES" respectively. The assignment deeds give the appellant firm only the right to use the brand names on their products. The denial of SSI exemption under Notification No. 8/03-CE in respect of goods affixed with brand name is linked with the brand name being owned by some other person and, thus, for this purpose what is relevant is the ownership of the brand name. Admittedly, none of these brand names are registered in the name of the appellant. Therefore, we are of the view that the appellant firm is not eligible for SSI exemption in respect of the goods affixed with brand name "KILLER" and "5 CEES" which do not belong to them. We are supported in this view by the judgment of the Tribunal in the case of Vee Gee Faucets P. Ltd. vs. CCE, Gurgaon (supra), the para 9, 10, 11, 18 and 19 of the judgment of which are reproduced below "9. As already pointed out above, undisputedly, the period involved in the matter is between February, 200....
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....planation IX to the said notification which explained meaning of the brand name or trade name to mean that a brand name or trade name whether registered or not that is to say a name or a mark, code number, design number, drawing number, symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified 'goods and some person using such name or mark with or without any indication of the identity of that person, it was held that the said explanation makes it clear that the brand name or trade name shall mean a brand name or trade name whether registered or not of another person that is to say a name or a mark, code number, design number, drawing number, symbol, monogram, label, signature or invented work or writing and same makes it further clear that even a use of part of a brand name or a trade name, so long as it indicates a connection in the course of the trade would be sufficient to disentitle the person from getting exemption under the notification. 18. In Bigen Industries case, the Apex Court had held thus - "The....