TaxTMI 
TaxTMI 
2019 (4) TMI 1258
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....irmed duty demand from September 28, 1996 onwards. Penalty of Rs. 10 lakhs has been imposed upon the appellant no. 2, Shri Dilip Seth, under Rule 209A of the Central Excise Rules, 1944. The period involved is from April 1, 1994 to November 6, 1998. 2. During the pendency of the proceedings Shri Dilip Seth, appellant no. 2, has died on November 5, 2018. Death certificate issued by the Howrah Municipal Corporation, Howrah dated November 20, 2018 has been submitted in support and is kept on record. 3. The brief facts of the case are that during the material period, the appellant No. 1 M/s. Glasspoll, holding a registration under the Central Excise Act for manufacture of roofings, ridges, panels etc. of plastic classifiable under Chapter Heading 3925.99 of the Central Excise Tariff, manufactured and cleared corrugation roofings and plain panels of "GLASSPOLL" brand of different sizes, which brand name according to the appellant no. 1 was assigned to them for the products by a Deed of Assignment executed in its favour on April 7, 1993 by the brand owner VMT Fibreglass Industries ("VMT"), without payment of central excise duty and upon availing benefit of small scale exemption noti....
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....t is, however, submitted that in view of the several decisions of the Tribunal, including the larger bench decision of the Tribunal during the material period, until the year 2004, such as CCE Vs. Fine Industries, 2002 (146) ELT 53 (T-LBL), CCE Vs. Vikshara Trading and Investment Pvt. Ltd., 1996 (87) ELT 499 (T), which was affirmed by the Supreme Court in CCE Vs. Vikshara Trading and Investment Pvt. Ltd., 2003 (157) ELT 4 (SC) and Commissioner of Central Excise and Customs Vs. West Coast Diesels Ltd., 2001 (42) RLT 468 (T), the appellant had acted bona fide on the basis of the said decisions and that in the premises there can be no finding of any misstatement or suppression of facts on its part with intent to evade duty and that consequently, the extended period of limitation in terms of proviso to Section 11A(1) of the Act is not applicable. In support of this contention, reliance has been placed upon the following decisions: (i) Pahwa Chemicals Private Limited Vs. CCE, 2005 (189) ELT 257 (SC) ; (ii) Commissioner Vs. Wonderax Laboratories (I) Pvt. Ltd., 2010 (255) ELT A16 (SC), affirming Commissioner of Central Excise Vs. Wonderax Laboratories. 2010 (255) ELT 60 ....
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....leged ground that the figures as compared with the said private records were not found in the statutory documents required to be maintained under the Central Excise law. The said goods were all cleared on invoice basis and, as and when the goods were cleared from the said factory, the relevant entries were made in the relevant registers and the RT-12 returns periodically were submitted containing particulars of the goods manufactured and cleared during the quarter in question. Mere omission, if any, in maintenance of the RG-1 register and/or other statutory records cannot and does not ipso- facto lead to the conclusion that there has been surreptitious removal of any manufactured goods. It was further submitted that in any event, quantification of the purported demand of Rs. 8,21,553.25 was erroneous. Such error has been explained with reference to the relevant materials on record including the relied upon documents enclosed with the show cause notice. It is the submission on behalf of the appellant, that even without the benefit of exemption of Notification No. 1/93-CE, the demand for alleged clandestine removal cannot exceed Rs. 2,39,072/- taking the tariff rate of duty of 26% ad....
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....n Chemie (P) Ltd., Bangalore, which brand name is allowed to be used by the respondent and in these circumstances, following Explanation 8 to the Notification No. 175/86, dated 1-3-1986 would clearly become applicable. The explanation defines brand name and reads as under :- Explanation VIII - "Brand Name" or "trade name" shall 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 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." 5. On the basis of the aforesaid provision, this Court in a recent judgment dated 19-3-2015 passed in Civil Appeal No. 9157 of 2003 titled as 'Commissioner of Central Excise, Hyderabad-IV v. M/s. Stangen Immuno Diagnostics [2015(318) ELT 585(SC)] held as under: 6. Explanation VIII defines that brand name or trade name. As per this explanation, it would be a name or a mark, such as symbol, monogram, level,....
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....59) ELT 273 (Tri-Del), dealing with the case of brand name of another person being used upon consent acquired under an assignment deed, the Principal Bench of the Tribunal held as under :- "16. Plain reading of the Notification nowhere discloses that the exemption thereunder can be availed for the product bearing brand name or trade name of other person on the basis of consent of the proprietor of such brand name or trade name. Neither it discloses that assignment of right in relation to brand name or trade name by the proprietor thereof in favour of manufacturer of goods would exclude such manufacturer from the exclusion clause in the notification. It is well established that the product which carries the brand name or trade name whether registered or not of another person, such product would be noneligible to claim the benefit under the notification. That is the law laid down in clear words by the Apex Court in Bhalla Enterprises and reiterated in Maghraj Biscuits Inds. Ltd. case." This decision of the Tribunal has been upheld by the Hon'ble Supreme Court in Vee Gee Faucets (P) Ltd. Vs. Commissioner of C.Ex., 2015 (316) ELT A72 (SC). 13. In the light of the aforesa....
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....al and to that extent the appeal is dismissed in respect of respondent No. 1." The same view was also of CBEC, as clarified in its Circular No. 88/88-CX.6 dated December 30, 1988, which was in force during the relevant period. 14. In such cases, as held by the Hon'ble Delhi High Court in the case of Commissioner of C.Ex. Vs. Wonderex Laboratories 2010(255) ELT-60 (Del), the Special Leave Petition against which preferred by the Revenue was dismissed by the Hon'ble Supreme Court of India [Commissioner Vs. Wonderex Laboratories (I) Pvt. Ltd. 2010 (255) ELT A16 (SC)], it can be concluded that the assessee had acted on a bona fide belief and therefore the extended period of limitation is not applicable. In paragraphs 4 and 5 of the judgment the Hon'ble Delhi High Court observed as follows: "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, 1993 which dealt with this issue. Consequently, the dispute was referred to a larger Bench of the Tribunal and was ultimately settled in C.C.E. V. Fine Industries, 2002(146) ELT 53 (Tri-LB). The Full Bench of the Tribun....