AVA ENGINEERING COMPANY Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) In these three appeals, filed by M/s. AVA Engineering Company, the issue involved is whether the goods Manufactured by them bear the brand name of another person so as to make the goods ineligible for exemption from payment of duty.

(2.) 1 Shri C.L. Chopra, learned Advocate, submitted that the appellants manufacture C.L pipes, pipe fittings and Manhole covers and avail of SSI exemption under Notification No. 1/93 -CE., dated 28 -2 -93; that the brand name "Varuna" used by them on their goods belong to them; that the Brand Name "Varuna" was originally owned by M/s. Varuna Engg. Co.; that the appellants entered into an agreement with M/s. Varuna Engg. Co. on 2 -9 -86 under which they granted the right of sole use of brand name to the Appellants on payment of royalty of Rs. 25,000/ - per annum; that thereafter by a Deed of Assignment dated 10 -9 -86, Varuna Engg. Co. assigned the brand name "Varuna" in respect of C.I. Pipes and fittings as well as manhole covers to the Appellants; that after assignment, Varuna Engg. Co. also stopped manufacturing the impugned goods and started manufacturing Boiler Mountings and Valves and Cocks under the Brand Name "Corona"; that the Brand name "Varuna" was registered in favour of the Appellants with effect from 10 -9 -86 by the Trade Mark Authorities He, further, submitted that the benefit of SSI exemption is available to them from the date of assignment of the brand name and not from the date of registration of brand name in their favour. He relied upon the following decisions : -

(3.) The learned Advocate also contended that the goods manufactured by them and Varuna Engg. are entirely different and as per decision of the Larger Bench in the case of CCE, Chandigarh v. Fine Industries, 2002 (146) E.L.T. 53, benefit of SSI notification can only be denied if the brand name owner is also manufacturing the same goods; that since the goods manufactured are different, the Appellants are eligible for SSI exemption. He, further, mentioned that the duty has to be demanded after deducting the amount of duty from cum -duty -price in terms of the decision of the Larger Bench in the case of Sri Chakra Tyres Ltd. v. CCE, 1999 (108) E.L.T. 361. He finally contended that all the three adjudicating authorities - Joint Commissioner, Additional Commissioner and Deputy Commissioner - had vacated the show cause notice; that however, the Commissioner under Section 35E of the Central Excise Act, directed the Deputy Commissioner only to file appeal which is not legal; that thus application filed by Deputy Commissioner was not maintainable. Reliance has been placed on the following decisions :