COMMISSIONER OF C. EX. Vs. ESS BEE INDUSTRIES

JUDGEMENT

(1.) IN all these appeals, arising out of two orders -in -appeal No. 1937 -1954/99 and 1955 -1967/99 both dated 12 -11 -1999, the issue involved is whether all the respondents manufacturing Brass Sanitary Bathroom fittings and affixing with the brand name of another person are eligible for exemption under Notification No. 175/86 -CE dated 1 -3 -1986.

(2.) BRIEFLY stated the facts are that all the respondents manufacture Brass Sanitary Bathroom fittings falling under Sub -heading 8481.80 and 8481.99 of the Schedule to the Central Excise Tariff Act; that the goods were packed in cardboard boxes on which stylised brand name "ARK" was printed; that the labels affixed on cardboard boxes also showed the brand name "ARK" in the stylised script; that name and address of M/s. Arkson Pvt. Ltd., Chandigarh was also printed on the label; that in addition "ARK" was also put on the Sanitary fittings by pasting stickers and also by affixing tickli on the body of the fittings; that all the respondents were availing exemption under Notification No. 175/86. Proceedings were started against them for demand of duty as brand name "ARK" in stylised script was brand name of M/s. Arkson Pvt. Ltd. Initially the matter was decided by the Collector, Central Excise who denied the exemption under Notification No. 175/86 holding that the respondents were affixing specified goods with the brand name of another person not eligible for the grant of exemption and also there was suppression on the part of the respondents. On appeal filed by the Assessees the Tribunal remanded the matter for de novo decision after arriving at a finding in regard to the eligibility to exemption of M/s. Arkson Pvt. Ltd. under Notification No. 175/86 and arrived at a definite finding in regard to other pleas of use of trade mark w.e.f. April, 1992 and other related matters concerning time bar. The Tribunal, however, gave specific finding that stylised "ARK" is a trade name of M/s. Arkson within the meaning of relevant para of Notification No. 175/86.

(3.) ON remand the matter has been decided by the Additional Commissioner who confirmed the demand of duty and imposed penalty on all the respondents holding that M/s. Arkson Pvt. Ltd. were not eligible for the benefit of Notification No. 175/86 as they were not holding any L -4 licence; that the casting of pig iron manufactured in their Proprietary concern M/s. Arkson Engg. Co. were exempted from payment of duty under Notification No. 208/83 dated 1 -8 -1983 and no declaration, as required to be filed under Rule 174 of the Central Excise Rules, was filed by them; that castings falling under Sub -heading 7325.10 of the Tariff were not specified in the An -nexure to the Notification. In addition the Additional Commissioner, relying upon the decision in the case of Mentha and Allied Products v. UOl, 1995 (77) E.L.T. A -133 (S.C.), concluded that the aggregate sale figure of M/s. Arkson Pvt. Ltd. was more than Rs. 2 crores during 1990 -91 and 1991 -92 and accordingly the benefit of Notification was also not available to them. The Additional Commissioner also gave findings that the respondents had started affixing stylised brand name "ARK" w.e.f. September, 1991 and not from April, 1992 and that extended period of limitation was invokable as the fact regarding manufacture of the goods affixed with brand name of another person was never brought to the knowledge of the Department.