ARIES INTERNATIONAL Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) The issue involved in this appeal filed by M/s. Aries International is whether the excisable goods manufactured by them are bearing the brand name of another person and consequently making them ineligible for the benefit of SSI Notification.

(2.) Shri Sudhir Malhotra, learned Advocate, submitted that the Appellants manufactured machines vices and availed of the exemption under SSI Notifications issued from time to time; that they had filed declaration under Rule 174 on 1 -4 -99 declaring their brand name as "Aries SUPERGRIP"; that the Commissioner under the impugned order has confirmed the demand of Central Excise duty and imposed penalty and confiscated the seized goods with an option to redeem the same on payment of fine on the ground that the excisable goods manufactured by them bear brand name "Aries" with monogram of zodiac sign Aries. Learned Advocate further submitted that their brand name is "Aries SUPERGRIP" and not "Aries". In support of his contention he brought metal strips which carries the brand name as "Aries SUPERGRIP" with zodiac sign "Aries"; that for denying the exemption under Notification No. 1/93 -CE. and subsequent notifications, it is required to establish that brand name used by a person belongs to another person; that no evidence has been brought on record to substantiate that the brand name "Aries SUPERGRIP" belongs to any other person; that the brand name known in the trade are "Aries" or "Aries SUPERGRIP"; that the Appellate Tribunal in the case of AGI Switch Pvt. Ltd, v. CCE - 1999 (111) E.L.T. 440 (T) has held that benefit of SSI Exemption is available if the brand name used are different brand names. Finally, he submitted that the demand of duty pertains to the period from 1 -7 -1995 to 20 -5 -2000 whereas the show cause notice has been issued on 20 -5 -2000; that the extended period of limitation is not invocable as the facts were in the knowledge of the department as they have filed declaration with the department. Reliance has been placed on the decision in the case of Cosmic Dye Chemicals v. CCE - 1995 (75) E.L.T. 721 (S.C.) and CCE v. HMM Ltd. - 1995 (76) E.L.T. 497 (S.C.). He also mentioned that no penalty is imposable as there was no intent to evade payment of duty. Reliance has been placed in the case of Tamil Nadu Housing Board v. CCE - 1994 (74) E.L.T. 9 (S.C.).

(3.) Countering the arguments Shri Vikas Kumar, learned Senior Departmental Representative, submitted that the brand name is used for the excisable goods manufactured by them is "Aries" which is evident from the photograph of the products manufactured by them and submitted by him during the course of the hearing. He pointed out that the word "SUPERGRIP" and "Aries" are written separately on the excisable goods manufactured by the appellants which goes to show that the brand name is not "Aries SUPERGRIP" as claimed by them. He further submitted that on metallic plate brought by the learned Advocate the words "Aries" and its zodiac sign are in distinct style and visually separable from the words "SUPERGRIP" which are written in capital letters and distinct colour than the "Aries" and its zodiac sign; that the word "SUPERGRIP" represent the telegraphic address of the appellants and also is an adjective for the quality of the machine. He finally, submitted that the extended period of limitation is invocable for demanding the duty as they had misdeclared in the declaration which was filed only in 1999 that their brand name is "Aries SUPERGRIP" whereas the fact is that their brand name is "Aries".