(1.) THIS appeal and stay application arise from the order in appeal No. 107/99 dated 6.7.1999 passed by the Commissioner (Appeals), Chennai rejecting the appeal of the appellants for non compliance with the stay order directing the appellants to pre -deposit the entire adjudicated amount in terms of the order in original passed by the Additional Collector, including the mandatory penalty besides penalty under Rule 173Q of the CE Rules. The charge against the appellants was that they were affixing the brand name "Sheenlac" of another person on their product. The learned Consultant submits that duty is not demandable as they had used the brand name only on one product and duty with regard to that product was only Rs. 7000/ -. He submits that originally the demand raised in the show cause notice was more than Rs. 16.50 lacs. However, the Additional Collector accepted their pleas and dropped the demand for the year 1995 -96 and 1996 -97. However, the Additional Collector has based his findings on the statement given by the manufacturer of Cartons. However, even in terms of that statement noted in para 7 of the order in original he had clearly stated that "Sheenlac" was printed on the corrugated boxes except one or two supplies. He submits that there was one invoice 10788 dated 8.3.1997 which pertains to "Sheenlac". He submits that there was no evidence produced by the Revenue to the extent of duty confirmed pertaining to this invoice. He submits that the order in original was not based on material evidence at all. He also points that there was allegation that the appellants had mentioned "Sheenlac" in the invoice but without giving the details of the invoice. He submits that the appellants had requested the Revenue to disclose the invoice number said to have been used by them. He submits that SSI Notification refers to affixing of brand name on the goods and even otherwise demands cannot be raised for mentioning the brand name on the cartons. He further submits that even as per the Revenue's case, brand name was not used in tin container except in Splash. Further even as per the Revenues case, the Cartons were said to have been affixed with brand name owned by some other party. As per the Notification, the brand name should be used on the product and in this case, the brand name was mentioned only on the Carton and not on the goods. He submits that there are large number of judgments on this issue. He submits that the appellants have a strong case both on merits as well as on financial ground and therefore, the appellants may not be asked to pre -deposit any duty and penalty as it is not justified. He submits that the assessee is a Proprietrix and the Unit has suffered a loss of more than Rs. 98,000/ -. He submits that if waiver of the entire amount is not granted, the unit may come to a closure and the right of appeal will be lost. He seeks remand of the matter to the Commissioner (Appeals) by granting complete waiver so that they can argue the matter before him on merits.
(2.) THE learned DR points out that the authorities below have passed detailed orders and the impugned order is prima facie sustainable. She submits that prima facie there are clear violations of the terms of Notification. Therefore, the appellants may be directed to pre -deposit the duty, the mandatory penalty and the penalty under Rule 173Q and the appellants may be put to some terms to safeguard the Revenue interest. On consideration of the submissions we find that there is force in the arguments of the learned Consultant and prima facie the appellants have made out a strong case on merits. Even in terms of the allegations made, the appellants are said to have used the brand name on the Carton. The Notification lays down that brand name of another person if used on the goods, then the benefit of the SSI notification would not be available. In this case the appellants had called upon the Revenue to disclose the invoice number and the goods on which the brand name has been used by them and also the sales details. There is no seizure in the matter and the evidence is based on the statement of manufacturer of cartons. Even in terms of the statement of the said manufacturer, as noted in para 7 of the order in original he had indicated that he had printed "Sheenlac" on one invoice. Therefore, the appellants have made out a case in the matter. Taking into consideration the overall facts and circumstances and also the plea of financial hardship and after we have examined the balance sheet produced before us, the appellants have got a credit in hand of Rs. 19,947/ - and the loss is more than Rs. 90,000/ -. In view of the admission by the appellants that there is some duty liability which is Rs. 7,000/ -, we direct the appellants to pre -deposit a sum of Rs. 50,000/ - (Rupees Fifty thousand) within a period of two months from the date of receipt of this order. On such deposit and producing proof thereof, before the Commissioner (Appeals) he shall take up the appeal on merits. The balance of pre -deposit is waived and recovery thereof granted subject to compliance with this order. The impugned order is set aside and the matter remanded to the Commissioner (Appeals) for adjudication on merits without insisting on further deposit. The Commissioner (Appeals) shall take up the matter only on expiry of the two months period from the date of receipt of this order. The appeal is thus allowed by remand.