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Overland Agency vs Commissioner Of Custom (Prev.) on 4 May, 2005

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Customs, Excise and Gold Tribunal - Calcutta
Sen And Pandit Power Electronics ... vs Commr. Of C. Ex. on 24 March, 2003
Equivalent citations: 2003 (157) ELT 430 Tri Kolkata
Bench: A Wadhwa, S T C.

ORDER

Archana Wadhwa, Member (J)

1. As per facts on records appellant is engaged in the manufacture of 'automatic voltage stabiliser' and "static converter battery charger, battery inverter" falling under Chapter 90/85 of the CETA, 1985. During the relevant period, the appellant was availing the benefit of Notification No. 1/93-C.E., dated 28-2-93. They were issued five show cause notices alleging that since the appellants were using the brand name of another manufacturer i.e. M/s. Sen & Pandit Power Electronics Pvt. Ltd., 16 Palm Avenue, Calcutta, they were not entitled to the benefit of Notification No. 1/93. Accordingly demand of duty of Rs. 3,87,887.18 was confirmed against them and penalty of Rs. 3,000/- was imposed.

2. During the proceedings before the authorities below the appellants strongly contended that M/s. Sen & Pandit Power Electronics (P) Ltd., is having its manufacturing unit at Sonarpur Station Road, 24 Pargana (South), West Bengal and having its Registered Head office at 16, Palm Avenue, Kolkata-700019. The said office is having another unit at Ranchi which should not be treated as Brand Name/Trade Name user rather factory at both the places belong to one brand name owner i.e. M/s. Sen & Pandit Power Electronics (Pvt.) Ltd. having its Head Office as mentioned herein above.

They argued that M/s. Sen & Pandit having its registered office at 16, Palm Avenue, Kolkata-700019 is one legal entity and its factory at Sonarpur (Kolkata) and Hindpiri (Ranchi) are 02 (two) units of the said company and therefore using of brand name of another person by the appellant does not arise at all. Moreover, no brand name was being used in the products manufactured at Ranchi. The name of the comnany "Sen & Pandit Power Electronics Pvt. Ltd." as manufacturer were being shown on the products. Thus, there is no violation of provisions of Para 4 of Notification No. 1/93-C.E., dated 28-2-93. That the company have 02 (two) Factories, one at Sonarpur (Kolkata) another at Hindpiri (Ranchi) and both have been registered unit with the Central Excise Authority. As per Para 2 of the Notification No. 1/93-C.E., dated 28-2-93 "The aggregate value of the clearances of the specified goods for home consumption in a financial year by a manufacturer from one or more factories" shall not exceed the specified limit.

In the instant case M/s. Sen & Pandit Power Electronics Pvt. Ltd. is a manufacturer having two units viz. one at Kolkata and other at Ranchi. Neither in the show cause notice nor in the adjudication order it has been mentioned that the appellant had wrongly computed the clearance value relating to misuse of exemption by either of the said 02 (two) units and thus there has been no revenue implication on this score.

3. The Commissioner (Appeals) however did not favour with the appellants' contention and observed that the unit at Calcutta was using logo "(SP) Device" on their products. Whereas the appellants' unit at Ranchi was not using any such logo on their product, but were giving company's name i.e. M/s. Sen & Pandit Power Electronics in bold capital on their product. This was confirmed by one of their dealers. After observing so he concludes that the adjudicating authority has rightly denied the benefit of Notification No. 1/93. It is not understood as to when the appellants were not using the brand name "(SP) Device" but were only using their factory's name on the product, how can the Revenue conclude that the benefit of Notification No. 1/93 is not available. We also find force in the appellants second contention that the said logo in any case belongs to them and they are having two factories one at Ranchi and one at Calcutta which are two units of the same company M/s. Sen & Pandit Power Electronics Pvt. Ltd. The said contention has been rejected by the Commissioner (Appeals) on the ground that it has not been supported by any documentary evidence, books of accounts etc. that the value of clearances of both the units are being clubbed for the purposes of Notification No. 1/93. On the other hand the appellants have strongly contended that they are considering the clearance value of both the units for the purposes of exemption notification. The Revenue has also not come out with the fact as to whose brand name is being used by the appellant and the same belongs to which company. As such we are of the view that the matter needs to go back to the authorities for verification of the above factual positions. If the appellants in their factory at Ranchi are not using any brand name, the benefit cannot be denied or in the alternative if the brand name is their own company's brand name, the mere fact that there are two units of the company will also not disentitle them from the benefit of exemption notification. Accordingly we set aside the impugned order and allow the appeals by way of remand for fresh adjudication in the light of the observations made by us above.