LAXMI INDUSTRIES Vs. COMMISSIONER OF CENTRAL EXCISE, RAJKOT

JUDGEMENT

(1.) THESE appeals have been filed against Order -in -Appeal Nos. 397 to 400/2006/315 to 318(RAJ)/Commr.(A)/ RP/Raj, dated 22 -6 -2006. The issue involved is whether the benefit of small scale exemption under Notification No. 1/93 -C.E., dated 28 -8 -1993 is admissible to the appellant for affixing a brand name AVON. In the proceedings before the lower authorities, it has been held that the brand name AVON belongs to appellant M/s. Wel -Tech Electronics, Jamnagar and accordingly, the benefit of Notification No. 1/93 -C.E., dated 28 -8 -1993 is not admissible. The first appellate authority, inter alia, has relied upon the judgment of the Mumbai CESTAT in the case of Cycle Motors Ltd. v. CCE, Pune - 2006 (196) E.L.T. 319 (Tri. -Mum.) = 2008 (9) S.T.R. 310 (Tribunal), while remanding the appellants appeal.

(2.) SHRI S.J. Vyas (Advocate), appearing on behalf of the appellant argued that brand name AVON is being used by the partnership firm of the appellant and their case is squarely covered by the judgment of Honble High Court of Delhi in the case of CCE v. Minimax Industries - 2011 (269) E.L.T. 166 (Del.) and judgment of Delhi Bench of CESTAT in the case of Elex Knitting Machinery Co. v. CCE Chandigarh -I - 2003 (158) E.L.T. 499 (Tri. -Del.) which has also been confirmed by Honble High Court of Punjab and Haryana and Honble Supreme Court as reported at 2010 (258) E.L.T. A48 (P and H) and 2012 (283) E.L.T. A18 (S.C.) respectively. It was further argued that this issue has already been clarified by C.B.E. and C. under Circular No. 52/52/94 -CX., dated 1 -9 -1994 conveying that if the brand name does not belong to any person, then such manufacturers using that brand name are eligible to small scale exemption. It was submitted that in the present appeal, brand name AVON belongs to the family of the appellants. An application was made to the appropriate authorities under Trade and Merchandise Marks Act, 1958 by M/s. Wel -Tech Electronics, Jamnagar, but the objection was raised by appropriate authority that the brand name AVON is already being used by other manufacturers of Delhi.

(3.) REGARDING limitation, Shri Vyas (Adv.) argued that the required declarations under Rule 174 of Central Excise Rules and Notification No. 1/93 -C.E., dated 28 -2 -1993 were filed by all the appellants and therefore the demand raised are also time barred.