TaxTMI 
TaxTMI 
2021 (8) TMI 902
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.... (ii) I hereby confirm and order recovery of interest at the appropriate rate under Section 11AB of the Central Excise Act, 1944. (iii) In view of the findings recorded at par 11(a) above, I refrain from confiscating the goods valued at Rs. 20,30,041/- or imposing a redemption fine in respect of the said goods. (iv) I hereby impose a penalty of Rs. 3,34,551/- under Section 11AC of C Ex act, 1944 Rule 25(1) of the C Ex Rules, 2002 on the confiscated goods as above. (v) I hereby impose a personal penalty of Rs. 10,000/- under Rule 26 of the C Ex Rules, 2002. 2.1 Appellant is engaged in telemarketing of products by TV advertising. The Appellant purchases goods from importers to local level and carry out the process of packing in secondary boxes as well as putting stickers which bears the name of the product, the importer's name, name of the company marketing it, item code, date of import and the MRP. 2.2 The officers of DGCEI, Zonal Unit Mumbai, visited the Appellant's business premises and detained certain goods. In case of goods i.e. Magic Bullet Food processor (MG Fresh), Magic Bullet Food Processor MG (Return), Power Juicer PJ (Return)....
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....xed. • Even if the process of putting an outer packing on traded goods for safety in transit amounts to manufacture, even then they are entitled for benefit of SSI exemption. The Brand "Magic Bullet" belongs to Thane Direct an overseas company and the same has been allowed to be used by them. Further in case of three other products SSI exemption is undisputedly available. • If the process is considered as manufacture in that case they are entitled for the credit of the duty paid on inputs, packing material used in such packing; • He relies upon the judgment of Formica India Division v. CCE 1995 (77) ELT 11 (SC), Bharat Wagon & Engg. Co. Ltd. v. CCE Patna 2001 (131) ELT 681 (Tri) Kolkata, Ajay Ind. Corp v. CCE Meerut 2002 (147) ELT 786 (TRI) and Bombay Dyeing & Mfg. Co. Ltd. v. CCE 2004 (176) ELT 180 (Tri). • He further submits that in case of product named as "Magic Bullet" the overseas company has granted them right to use the trademark in India and hence the SSI exemption on said product is also available to them. He relies upon the judgments in case of CCE v. ESBI Transmission Pvt. Ltd. 1997 (91) ELT 292 (Cal). Vikshara Trading....
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....ture 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 is also clarified that where the specified goods manufactured by the manufacturer bear a brand name or trade name whether registered or not of any other manufacturer or trader, such specified goods shall not, merely by reason of that fact be deemed to have been manufactured by such other manufacturer or trader. The Apex Court in Rukmani Pakkwell Traders case held that the explanation to clause 4 of the Notification No. 1/93-C.E. provides that the exemption contained in the notification would not apply to specified goods bearing a brand name or trade name registered or not of another person. Referring to Explanation 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 invente....
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....he Appellants were importing goods and after packing of same in corrugated boxes were affixing the importers name as well as MRP in addition to other details. Such activity is covered under manufacture under Third Schedule to the Central Excise Tariff (sic) as stipulated under Section 2(f) of the Central Excise Act. The Appellant has contended that the they are the owner of Trade Mark as the brand name was registered in their name in India. We find that once the brand name "Magic Bullet" though belonging to overseas company but permitted to be used by the Appellant in India and registered in their name will make the Appellants the owner of such brand name. In such a case the Appellant shall be entitled to SSI exemption on their clearances and after crossing of the exemption limit they are entitled for credit of duty paid on Inputs and Input services. Our views are based upon the judgment of Hon'ble High Court of Kolkatta in case of CCE v. ESBI Transmission Pvt Ltd. 1997 (91) ELT 292 (Cal). Vikshara Trading & Invest P Ltd. 2003 (157) ELT 4 (SC) and Bhalla Enterprises 2004 (173) ELT 225 (SC). In case of M/s ESBI case supra the brand name belonged to overseas company but was permi....
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....rly due to the reasons discussed above, the confiscation of goods and imposition of penalty cannot be justified. We therefore set aside the demands on the grounds of time bar. As far as charges against the Appellant Shri Hitesh Israni is concerned, since the intention to evade payment of duty is not present in this case, there is no reason to impose penalty upon him. Consequentially we hold that no penalty could have been imposed upon him under rule 26." 4.3 Learned Authorized Representative relied upon the decision of the Hon'ble Apex Court in case of Vetcare Organics P Ltd and CESTAT in case of Vee Gee Faucets, to argue against the order of tribunal in the case of appellants themselves. Even if the arguments of the learned Authorized Representative were correct and the decision of the Vetcare and VEE Gee Faucets, decided the issue of admissibility of SSI Exemption under Notification No 8/2003-CE otherwise, then also the order of tribunal in the appellants own case cannot be faulted to the extent of allowing the credit of duty paid on the inputs and input services. 4.4 In para 64 of his order, Deputy Commissioner, notes as follows: "64. The submitted that in any eve....