CCE Vs. YAK PAINTS (P) LTD.

JUDGEMENT

(1.) In this Appeal filed by Revenue, the issue involved is whether benefit of small scale exemption notification No. 175/86 is available to M/s. Yak Paints (P) Ltd.

(2.) Mrs. Charul Barnwal, learned Senior Departmental Representative, submitted that the respondents manufacture Acrylic washable distemper and cement paints which they sell under the brand name 'Camel' and Yak'; that the Assistant Commissioner under Order -in -Original No. 51/2002 dated 13.3.2002 disallowed the Small Scale Exemption Notification on the ground that the brand affixed by them belonged to other units; that however, the Commissioner (Appeals) under the impugned order has set aside the Adjudication order on the ground that the Adjudicating Authority has not disclosed the name for whom the respondents were manufacturing branded goods; that the Commissioner (Appeals) had also relied upon the Tribunal's Final Order No. 72 -84/04B dated 12.1.2004 : 2004 (113) ECR 877 (T) in the case of respondents themselves wherein it has been held that the respondents are eligible to avail S.S.I, exemption. Learned Senior Departmental Representative further submitted that the respondents themselves have not informed as to whom the brand name 'camel' and Yak' belonged to; that the onus primarily lies on the shoulders of the respondents themselves to disclose truly and completely name of the owner of the brand name being used by them while claiming the benefit of S.S.I, exemption; that burden to prove otherwise would have been shifted to Department if the respondents have declared all the requisite information at the time of claiming the exemption. Learned Senior Departmental Representative also reiterated the grounds of Appeal as contained in the Memorandum of Appeal wherein it has been mentioned that the appellants have admitted in their letter dated 22.2.1991 that impugned brand name belonged to other units.

(3.) Countering the arguments, Shri Naveen Mullick, learned Advocate, submitted that the question regarding the eligibility of the appellants for the benefit of S.S.I, exemption Notification has been considered by the Appellant Tribunal in the case of Rajdoot Paints and Ors. v. CCE Meerut, Final Order No. 72 -84/04 -B dated 12.1.2004 : 2004 (113) ECR 877 (T) that the Tribunal has held that the respondents were eligible to avail S.S.I, exemption. He also contended that the burden to prove lies on the Department that the Appellants were clearing the excisable goods affixed with the brand name of another person; that the Revenue has not discharged their onus as neither in the Adjudication order nor in the grounds of Appeal, the names of the persons whom the impugned brand names belong to is disclosed.