2024 (9) TMI 1491

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....CE DILIP GUPTA : The order dated 17.05.2019 passed by the Commissioner (Appeals) has been assailed in all the three appeals. This order upholds the order dated 28.03.2018 passed by the Assistant Commissioner and the three appeals filed by M/s Aquatech System, Jodhpur the appellant, Tapan Rai and Manju Jain have been dismissed. The Assistant Commissioner had confirmed the demand of central excise duty on clearance of mineral water bearing brand name 'YES' and 'SAFE' for the period from February, 2012 to August, 2016 under section 11A(4) of the Central Excise Act, 1944 the Central Excise Act with interest under section 11AA and penalty under section 11A(c) of the Central Excise Act. 2. Excise Appeal No. 52781 of 2019 has been filed by t....

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....fication dated 01.03.2003 and it is as follows: "In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944) ( hereinafter referred to as the Central Excise Act ) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 8/2002-Central Excise, dated the 1st March, 2002, published in the Gazette of India vide number G.S.R. 129 (E), dated the 1st March,2002, the Central Government being satisfied that it is necessary in the public interest so to do, hereby exempts clearances, specified in column (2) of the Table below ( hereinafter referred to as the said Table ) for home consumption of excisable goods of the descripti....

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.... to the first clearances of the articles of jewellery for home consumption, other than articles of silver jewellery but inclusive of articles of silver jewellery studded with diamond, ruby, emerald or sapphire, falling under chapter heading 7113 of the First Schedule, up to an aggregate value not exceeding fifty lakh rupees.   Nil xxxxxxxxxx 4. The exemption contained in this notification shall not apply to specified goods bearing a brand name or trade name whether registered or not, of another person, except in the following cases:- ********* 5. This notification shall come into force on the 1st day of April, 2003. Explanation:- For the purposes of this notification, (A) "bra....

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....rned chartered accountant pointed out that the same was cleared to M/s Bhagwati Beverages, Jodhpur under an agreement under which Bhagwati Beverages allowed the appellant to process, pack and sell mineral water with brand name 'YES' to them and not to consumers or in the market. Learned chartered accountant also pointed out that the demand proposed in the show cause notice dated 08.03.2017 could not have been confirmed for the extended period from February, 2012 to August, 2016 under section 28(4) of the Central Excise Act. 8. Shri Bhagwat Dayal, learned authorized representative appearing for the department, however, supported the impugned order. 9. The submissions advanced by the learned counsel for the appellant and the learned aut....

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....t the exemption cannot be denied for the reason that nothing has been brought on record by the department to show that the brand name is in the name of some other person. 15. In this connection, reference can be made to the decision of the Tribunal in Mukur Pharmaceuticals Co. P. Ltd. vs. Commr. of C.Ex., Chandigarh 2001 (135) ELT 569 (Tri.-Del.), wherein it was observed: "5. We have considered the submissions of both the sides. Para 4 of notification No. 1/93 provides that the exemption contained in the notification shall not apply to the specified goods bearing a brand name or trade name (registered or not) of another person. This paragraph will be applicable only if, firstly the specified goods bear a brand name or trade name....

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.... placed on the decision of the Supreme Court in Commissioner of Central Excise, Goa vs. Primella Sanitary Products 2005 (184) E.L.T. 125 (S.C.), wherein it was observed as follows: "2. The short question for consideration is whether the Respondent was entitled to the benefit of Notification No. 175/86-C.E., dated 1st March, 1986 and Notification No. 1/93, dated 28th February, 1993. The only ground on which the adjudicating authority had denied the benefit of the Notifications was that the Respondent was using on their products the words "Comfit Always" which was a registered trademark of one M/s. Christine Hodein (I) Pvt. Ltd. The adjudicating authority held that the Assignment dated 28th June, 1987, for a consideration of....