TaxTMI 
TaxTMI 
2019 (7) TMI 326
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....e as under: Appeal Nos. E/53016-18/2016 Appeal Nos. E/51069-71/2017 Total Period 01-10-2008 to 31.03.2013 2013-14 Duty Demand from M/s Fiba Hardwyn Locks Ltd. Rs. 40,74,612/- Rs. 12,80,274/- Rs. 53,54,886/- Penalty on M/s Fiba Hardwyn Locks Ltd. Rs. 40,74,612/- Rs. 12,80,274/- Rs. 53,54,886/- Penalty on Shri R.S. Sayal Rs. 6,00,000/- Rs. 6,00,000/- Rs. 12,00,000/- Penalty on Shri S.S. Sayal Rs. 6,00,000/- Rs. 6,00,000/- Rs. 12,00,000/- 2. All these appeals involve common question of law namely,eligibility of S.S.I exemption to the manufacturer, in view of manufacture of branded goods and also the issue of limitation as well as imposition of penalty on the appellants. Therefore, all these six appeals are taken up together for disposal. 3. The facts in brief of the matter are that M/s Fiba Hardwyn Locks Ltd. are manufacturer of hardware items namely Doors Closers, Floor Springs, Door Handles, Locks, etc bearing brand names "HARDWYN" and "FIBA". Since the brand name FIBA belongs to them and the brand name HARDWYN has been assigned to them, they were availing S.S.I. exemption under notification ....
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....so stated that they are using HARDWYN brand for a long time and are also holding ISI Mark. In course of investigation, Shri Rubaljeet Singh Sayal was summoned by the investigating officers and his statement was recorded by them under section 14 of Central Excise Act 1944 on 05.10.2009. In his statement, Shri Rubaljeet Singh Sayal stated that FIBA is registered brand of M/s Fiba Hardwyn Locks Ltd.; that HARDWYN is registered brand of Shri S.S. Sayal who has assigned the same to M/s Fiba Hardwyn Locks Ltd. by assignment deed dt. 17.02.2006. The branded goods bearing brand name HARDWYN which had been detained in the premises of Efficient Devices Pvt. Ltd. in course of search, was subsequently released unconditionally by the officers after scrutiny of relevant Bills/invoices relating to the detained goods. 6. The branded goods detained under panchnama dt. 26.08.2009 at the premises of M/s Fiba Hardwyn Locks Ltd. were placed under seizure by the officers under Seizure Memo dt. 22.02.2010. A show cause notice C.No. IV(Hqrs. Prev.)Int/42/D-II/09/346dt. 24.02.2010 proposing confiscation of seized goods and imposition of penalty was issued by Deputy Commissioner (AE), Central Excise, Del....
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....d. and M/s Fiba Hardwyn Locks Ltd. on 26.08.2009.In course of search, the officers found goods bearing brand name HARDWYN and also some packing material bearing HARDWYN brand in the premises of M/s Fiba Hardwyn Locks Ltd. The goods engraved with brand name HARDWYN valued at Rs. 5,57,920/- was first detained under panchnama dt.26.08.2009 which was subsequently converted into seizure of goods vide Seizure Memo dt. 22.02.2010. A show cause notice dt. 24.02.2010 was issued to M/s Fiba Hardwyn Locks Ltd. and Shri Rubaljeet Singh Sayal proposing confiscation of seized goods and for imposition of penalty. The ld. Deputy Commissioner of central excise, Division V, Janakpuri, New Delhi, vide Order-in-Original no. 183/10 dt. 03.12.2010 passed the order for confiscation of seized goods and demand of applicable Central Excise duty. He also imposed penalty on both the noticees. On appeal by the appellant, the Commissioner (Appeals), vide Order-in-Appeal no. 233 & 234/CE/D-II/2011 dt. 02.05.2011 set aside the Order-in-Original dated 03.12.2010, both on merits by holding that the assignment deed in respect of HARDWYN brand was valid, even without registration with the Trade Mark authorities and t....
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.... same or identical goods manufactured, as by the present appellant. It is also not known whether the said Santu Devi is using the brand name or has abandoned the same. It is settled law that bar of SSI exemption in respect of branded goods is inapplicable, in cases of use of brand name by the registered owner on different goods and also in cases where the use of brand name is abandoned by the registered owner. 13. The ld. Counsel further submitted that there is not an iota of evidence to suggest that the entire clearance of excisable goods by the appellant assessee during the relevant period was of only HARDWYN brand goods. The invoices relied upon by the department do not indicate only HARDWYN branded goods. It is admitted fact that the appellant assessee are manufacturing goods with both "FIBA‟ and "Hardwyn‟, and they have not abandoned use of brand name "FIBA‟. However, the department has presumed non-production of "FIBA‟ brand goods during the relevant period. Therefore, the description as well as value of goods cleared during the relevant period has been presumed by the department. It is settled law that duty demand cannot be raised on assumptions an....
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.... that the appellant assessee failed to provide clearance value of such branded goods. In view of ineligibility of exemption to the appellant assessee, the demand of duty is fully justified. He also submitted that non-payment of duty by way of misstatement or suppression of true facts, the intention to evade payment of duty on the part of the assessee is proved. He, therefore, submitted that extended period of limitation has been rightly invoked and penalty on the appellants has also been rightly imposed. He prayed for upholding the impugned orders. Discussions & Findings 17. Heard both sides, considered the submissions made before us and perused the records. In these cases, the issue on merits is eligibility of exemption under Notification No.8/2003-CE, dt.01.03.2003, as amended, popularly known as SSI exemption in respect of branded goods. It is seen that the duty demand in these matters is in respect of alleged clearance of excisable goods with HARDWYN brand, which, as per department, belongs to other person and not to the appellant assessee. We find from the records that the appellant assessee is manufacturing excisable goods with brand names HARDWYN and FIBA. There is no ....
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.... on this account is not sustainable." 18. We find that the department did not prefer appeal against the said Order-in-Appeal dt.02.05.2011. Therefore, the same has attained finality. As regards registration of assignment deed for the purpose of availing S.S.I. exemption under notification no.8/2003 CE dt.01.03.2003 as amended, we find that the issue stands decided in favour of assessee in the CASE OF Jepika Paints vs UOI 2008 (232) ELT 424 (MP). We find that in CCE vs Primella Sanitary Products reported in 2005 (184) ELT 125 (SC), the Hon'ble Supreme Court has affirmed this Tribunal‟s view that so long as assignment stands, the assessee is entitled to the benefit of SSI exemption. In the present case we find that the order of Commissioner (Appeals) holding the assignment deed valid, remains unchallenged by the department and hence, has attained finality. Therefore, we hold that so long the assignment deed in favour of the appellant remains valid, the appellant is entitled to exemption under Notification No.8/2003 CE dt.01.03.2003 as amended, in respect of goods bearing HARDWYN brand, manufactured by them. 19. We further hold that as the said Order-in-Appeal dt.02.05.201....
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....ourt has held that owner of brand name is not obliged to make a roving enquiry to find out use of the same brand name by any other person. In CCE vs Bhalla Enterprises reported in 2004 (173) ELT 225 (SC), he Hon'ble Court has held that exemption is not to be denied merely because somebody else is also using the same brand name. Under the circumstances, we hold that re-agitating the issue of validity of assignment deed after more than two years of decision in favour of the assessee, without challenging such order is unjustified and illegal. We also hold that denial of exemption in the present case, solely on the basis of Trade Mark Registration Certificate in the name of other person is unsustainable, in view of the law laid in above cited Supreme Court judgments. 21. As stated above, the department has not investigated use of the brand name by the owner Mrs. Santu Devi.The description and nature of goods manufactured by the owner of the HARDWYN brand Mrs. Santu Devi is not on record. It is also not known whether the said owner is still using the said brand name on the products manufactured by her. In a catena of decisions, it has been held that bar of S.S.I. exemption in respect....