CONTINENTAL POWER SYSTEMS Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) BOTH these appeals of the party and by the department arise out of the Order -in -Original No. 44/97 dated 29.9.97 confirming duty demand by extending the provisions of Section 11A of the CE Act, 1944 and imposing penalty. The party has challenged the denial of the benefit of Exemption Notification 1/93 solely on the ground taken by the department that the appellant had used the brand name "celtronics" said to have been used by another Company at Ahmedabad having same name of that Company "Celtronics". The appellant is a Proprietrix (sic) concern manufacturing UPS systems. During the year 1991 they had also been using the name "Celtronics" in a different stylage. The department issued show cause notice alleging that the said name is also owned by M/s CELTRONICS and they are affixing the said brand name CELTRONICS which disentitle them to the benefit of the exemption Notification No. 1/93 as amended. The appellants had also contended that they had no connection whatsoever with the party at Ahmedabad and it was only a mere co -incidence that the name appears to be the same. The appellants have also contended that their clearances were below Rs. 30 lakhs and they were eligible to the benefit of the said exemption. It is their contention that there was no intention to evade payment of duty as there was no intention to evade payment of duty or they had any connection or any information to the existence of the said person at Ahmedabad having the said name and therefore the question of invoking the larger period on the ground that they had suppressed facts and hence they had intention to evade payment of duty, is not correct based on the evidence on record. They have also contended that in terms of explanation IX of the said Notification the Department has to establish that there was nexus between the brand name used in relation to such specified goods for the purpose of indicating or so as to indicate connection in the course of trade between the said specified goods and the same person using the said name or mark with or without any communication or identify of the person. The learned Counsel submits that the department has not established that the appellant's name or monogram or their product had any nexus in the course of trade between their product and the other product manufactured and used by the Ahmedabad party. It is contended that as the department has not taken any statement from the Ahmedabad party and no evidence on that side has been placed. Therefore, the Revenue has not established that there was any connection between the appellants' products with the other person using the same.

(2.) IN this connection the learned Counsel arguing for the assessee submitted that in identical matter, in the case of Rukmani Packkwell Traders v. CCE as reported in 1999 (109) ELT 204, the Tribunal had set aside similar order wherein there was deceptively similar and not same trade mark of specified person used and marketed by different persons although the product was having same name ARR and the other product ARR Seeval. Further he relied upon the judgment in the case of AGI Switches (P) Ltd v. CCE as , wherein also there was slight difference in the shape or logo and name mentioned "AGI" and the colour scheme. The learned Counsel submitted that the Ahmedabad party used the word CELTRONICS' in capital letters and logo mark while in their case, the name was used in small letters viz. 'celtronics' and those letters in capital letters viz. "CELTRONICS" was the brand name of the party at Ahmedabad. Therefore, there was no connection or nexus on each other's product. The trade also recognised product differently. The trade and the name also recognised differently. He submits that the department has not examined the party's case nor has taken statement and collected any evidence to show that there was nexus between the appellants and the party at Ahmedabad. Therefore the Explanation IX of the Notification No. 1/93 has not been satisfied and as such the appellants' claim for SSI benefit cannot be denied. He further submits that the appellants were totally unaware of the existence such a Company at Ahmedabad and the appellant was a propritrix and very small unit having only local sales confined to Bangalore district. Therefore, there was no intention to evade payment of duty even prior to Notification 1/93. And they would come within the ambit of the said Notification. There was no desire on the part of the appellant to evade payment of duty and hence they had bona fide belief to the eligibility to the Notification and hence the longer period cannot be invoked in their case. He also referred to the Board's Circular No. 52/92/94 dated 1.9.94 wherein in para 5 a clarification has been given with regard to the case falling in the present category. He submits that this clarification would clearly apply to the facts of the present case in terms of the Supreme Court judgment in the case of Ranade Mycro as reported in 1986 (87) ELT19. He submits that the Circular has binding effect on the authorities.

(3.) SHRI S. Kannan, the learned DR for the Revenue submits that the Commissioner has given detailed reasoning in his order. There is no dispute with regard to the name "celtronics" used by the parties and there was mutual use of the said brand name and hence the appellants' clearances come within the mischief of exclusion clause of the Notification. He submits that the appellants have not filed declaration and cleared the goods on payment of duty. Therefore, longer period of limitation would be applicable.