TaxTMI 
TaxTMI 
2017 (7) TMI 93
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....1.2011, when the following question of law was framed for consideration by this Court: "Whether the Tribunal is correct in dismissing the cross-objection filed by the appellant raising the question of limitation for the Revenue to make a demand" 3. In order to adjudicate upon the appeal, the following broad facts, are required to be noticed. 3.1. The Assessee, at the relevant point in time, manufactured chemicals for use in printing and photographic industry. In respect of the sale of its goods, it used the brand name "Micro", which was, admittedly, also the brand name of another family/sister concern, by the name, Micro Plates Private Limited (in short, "MPPL"). As would be evident from the cause title, the Assessee's name is Micro Chem Products (India) Pvt. Ltd. (in short, "MCPPL"). 3.2. Since, the Assessee had been claiming exemption from excise duty, as it was a Small Scale Industrial Unit (in short, "SSI Unit"), it did not, as it appears, get itself registered with the Central Excise Authorities. The Assessee's claim is that, since, its clearances were, always, below the sum of Rs. 30.00 lakhs, there is no need to register itself with the Central Excise Aut....
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....int in time, appears to be covered in favour of the Revenue, by virtue of the judgment of the Supreme Court rendered in the matter of: Commissioner of Central Excise, Trichy V. Grasim Industries Ltd., 2005 (183) E.L.t. 123 (S.C.). 5.1. Learned counsel, however, submits that the Tribunal failed to take into account, the fact that at the relevant point in time, there was a debate, as to whether or not, the Assessee was an infractor of the extant provisions of law, in failing to disclose that the brand name "Micro", which was affixed on its goods, was also used by its family/sister concern, i.e., MPPL. In other words, learned counsel submitted that the extended period of limitation, provided under Section 11A(1) of the 1944 Act [as it obtained at the relevant point in time], could not have been applied to the Assessee. The contention of the learned counsel, is that, at the most, the Assessee could be held liable for payment of duty for a period six(6) months, prior to the date of issue of SCN. As indicated above, the SCN was issued on 08.11.2000. 5.2. In support of his submissions, learned counsel has relied upon the following judgments: i) UOI V. Sonnenflex Abrasives Pvt. Lt....
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.... was not registered with the Central Excise Authorities and, therefore, had not filed any classification list. vi) Both, the Adjudicating Authority and the First Appellate Authority had ruled in favour of the Assessee. 7.2. Given this background, one would have to advert to the findings of fact rendered by the Adjudicating Authority. The findings of fact, which were returned by the Adjudicating Authority were as follows: i) That no particular person or company had claimed ownership of the brand name "Micro", either by way of usage or otherwise, before the Authorities, such as, those constituted under Trade Mark and Merchandise Marks Act. ii) "Micro" was a common name, which was also affixed as a prefix in the Assessee's name. iii) Though, the 1994 Circular was applicable in the Assessee's case, for the reason that, except for prior usage of the brand name "Micro", by another entity, the ownership in the brand name had not been conclusively proved. 8. As indicated above, the First Appellate Authority sustained the findings of the Adjudicating Authority. The reasons furnished were as follows: "....I have examined the case records and written submissions. ....
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....ithin the same factory; and (b) cement bearing a brand name or trade name (whether registered or not) of another person; Explanation. For the purposes of condition (ii), brand name or trade name means a brand name or trade name, whether registered or not, that is to say, a name or a mark, such as a symbol, monogram, signature, or invented words or any writing which is used in relation to a product for the purpose of indicating, or so as to indicate, a connection in the course of trade between the product and some person using such name or mark with or without any indication of the identity of that person. 10.2. It is, in this context, that the Supreme Court made the following observations. "......In our view, the Tribunal has completely misdirected itself. The term brand name or trade name is qualified by the words that is to say . Thus, even though under normal circumstances a brand name or a trade name may have the meaning as suggested by the Tribunal, for the purposes of such a notification the term brand name or trade name gets qualified by the words which follow. The words which follow are a name or a mark . Thus even an ordinary name or an ordinary mark is suffici....
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....cated at the beginning, Mr.G.Natarajan, fairly conceded that this argument, after a decision rendered by the Supreme Court in Grasim Industries case, was not open to him. 11. The issue, which, therefore, we are confronted with is: whether given the state of law, the extended period of limitation would be applicable in the instant case. 11.1. As noted above, the Assessee was not registered with the Central Excise Authorities, on account of the fact that its clearances were below the monetary limit, specified in various Notifications, issued from time to time. 11.2. As would be evident, the limit of exempted clearances, increased, in this period, from Rs. 30.00 lakhs to Rs. 50.00 lakhs. The Assessee, therefore, in our view, was entitled to contend that there was no occasion, for it, to disclose the fact that the subject goods were being cleared under the brand name "Micro", (which was also the brand name used by another family/sister concern), since, it had no occasion to file a classification list. 11.3. The Tribunal appears to have, in our view, failed to appreciate this aspect of the matter and, therefore, applied the ratio of the judgment in Ramply (India) Ltd. case. ....
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.... 12. Mr.G.Natarajan's argument, therefore, is that the more apposite judgment is that of the Bombay High Court rendered in: UOI V. Sonnenflex Abrasives Pvt. Ltd., 2016(343) E.L.T. 57 (Bom). 12.1. In this case, the Assessee had cleared the goods by inscribing on the packaging the following words: "in technical collaboration with West German Company". The Court rejected the plea of the Revenue that this was a case of fraud or collusion or wilful misstatement or suppression of facts, as contemplated under Section 11AC of the 1944 Act. The relevant observations made by the Division Bench are contained in paragraph Nos.10 to 13, which are extracted herein below: "10. According to the Revenue, inscribing the words "in technical collaboration with West German Company" on the manufactured goods itself constitutes user of the brand name. It may be noted that there were several decisions of the Tribunal as also the decision of the Apex Court in the case of Astra Pharmaceuticals (P) Ltd. v. Central Excise - MANU/SC/0641/1995 : 1995 (75) E.L.T. 214 wherein it was held that benefit of exemption notification is not lost by the assessee, merely because they affix/indicate on their pro....
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....asis is ours) 12.2. Similarly, in the case of CCE V. Wonderax Laborataries, IPL, 2010 (255) E.L.T. 60 (Del.), the Division Bench of the Delhi High Court rejected the plea of the Tribunal to apply the extended period of limitation. 12.3. This was a case, where the Assessee had used the name "Wonderax" on the shaving cream manufactured by it. The brand name was owned by a sister concern, which did not manufacture those goods. The Assessee was an SSI Unit. The Assessee took the plea that not only was it permissible for it, in law, to use the said brand name, but also it was under the bonafide belief, that it was exempted from payment of Central Excise Duty, even if, it had used the brand name of another person on the goods manufactured by it. The Court agreed to the stand of the Assessee that given this state of law and the conflicting views, the extended period of limitation would not apply to the Assessee. The observations made by the Court, in this behalf, being relevant, are extracted herein below: ".....4. It appears that there was conflict of views among different Benches of the Tribunal on the interpretation of the exemption Notification No. 1/93 dated 28th February, 1....