TaxTMI 
TaxTMI 
2017 (4) TMI 384
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....sued by invoking extended period of limitation on 12.04.2006. 2. The facts of the case are that the appellant was engaged in the manufacture of Tread Rubber, Cushion etc. and availing cenvat credit facility and cleared the goods at concessional rate of duty under Notification No.9/2002-CE or 9/2003-CE. 3. The appellant cleared goods bearing a brand name of other person at normal rate of duty and value of same were not computed for determining aggregate value of Rs. 1 Crore as per Para 3(b) of Notification No.9/2002-CE or Para 3(a) of Notification No.9/2003-CE. During period in dispute, the appellant cleared goods to M/s Director Transport, UT, Chandigarh and M/s Chief General Manager, DTC, New Delhi on payment of excise duty at normal....
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....e, he submits that the appellant has already discharged duty @ 16% on goods cleared to CTU & DTC which would have been chargeable duty @ 9.6% upto aggregate value of clearance of Rs. 1 crore, if the department contention is accepted as correct. The ld. Commissioner (A) failed to appreciate that there were no loss to the Government exchequer during the financial year, as the appellant has already paid duty @ 16% instead of 9.6% i.e before crossing the exemption limit of Rs. 1 crore. Further, he submits that the show cause notice was issued to the appellant is barred by limitation. 8. On the other hand, the Ld. AR opposed the contention of the Ld. Counsel and submits that as per the decision of this Tribunal in the case of Electrohms (P) L....
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.... of paragraph 4; (c) & (d) ------- 12. We have seen that in para 4 of the said Notification which is relevant to the facts of the case. Para 4 The exemption contained in this notification shall not apply to the specified goods bearing a brand name or trade name, whether registered or not, of another person, except in the following cases, namely:- The explanation to Notificatio No.9/2002-CE define brand name or trade name as under:- Explanation:- for the purposes of this Notification,- (A) "brand name" or "trade name" mean a brand name or trade name, whether registered or not, that is to say a name or a mark, such as symbol, monogram, label, signature or invented word or writing which ....
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....and name of the other person used and the goods were not sold in the market by CTU or DTC. 16. The said issue came up before the Hon'ble Apex Court in the case of Kohinoor Elastics Pvt. Ltd. reported in 2005 (188) ELT 3 (SC), wherein the Hon'ble Apex Court examined the issue and observed as under: "4. The exemption contained in this Notification shall not apply to the specified goods, bearing a brand name or trade name (registered or not) of another person: Provided that nothing contained in this paragraph shall be applicable to the specified goods which are component parts of any machinery or equipment or appliances and cleared from a factory for use as original equipment in the manufacture of the said machinery or equ....
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....tomer. The framers were aware that the customer may merely use such goods as an input for the goods manufactured by him. Yet clause 4 provides in catagoric terms that the exemption is lost if the goods bear the brand/trade name of another. Clause 4 does not state that exception is lost only in respect of such goods as reach the market. It does not crave out an exception for goods manufactured for captive consumption. The framers meant what they provided. The exemption was to be available only to goods which did not bear a brand/trade name of another. The reason for this is obvious. If use of brand/trade names were to permitted on goods manufactured as per orders of customers or which are to be captively consumed then manufactures, who are o....