2. Shri P.L. Verma vs Delhi-Iii

[Arising out of OIA No.358-359/GRM/RTK/2005, dt.06.10.05, passed by Commissioner of Central Excise & Customs (Appeals), Delhi-III)

1. M/s Famcom Rubber Products (India) Pvt.Ltd.

2. Shri P.L. Verma Appellants

Vs

Commissioner, Customs & Central Excise,

Delhi-III Respondent

Represented by:

For Assessee: Shri Mayank Garg, Advocate

For Revenue : Shri Yashpal Sharma, Authorised Representative

For approval and signature:

Mr. P.K. Das, Honble Member (Judicial)

Mr. P.S. Pruthi, Honble Member (Technical)

1. Whether Press Reporters may be allowed to see the No

Order for publication as per Rule 27 of the CESTAT

(Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the No

CESTAT (Procedure) Rules, 1982 for publication

in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy of Seen

the order?

4. Whether order is to be circulated to the Departmental Yes

authorities?

CORAM:

MR. P.K. DAS, HONBLE MEMBER (JUDICIAL)

MR. P.S. PRUTHI, HONBLE MEMBER (TECHNICAL)

Date of Hearing/Decision:21.01.2015

Final Order No.50986-50987/2015

Per: P.K. Das

1. These appeals are arising out of a common order and therefore, both are taken up together for disposal.

2. The Adjudicating Authority denied the benefit of SSI exemption notification on the ground that the appellant used the brand name FAMCOM of other unit under the name and style of M/s Farm Manufacturing Co. Delhi (i.e. the said unit). The Adjudicating authority confirmed the demand of duty of Rs.3,73,821.00 alongwith interest and penalty on the Appellant No.1 and also imposed penalty on Appellant No.2. Commissioner (Appeals) upheld the Adjudication order.

3. The contention of the ld.Advocate is that one of the Directors is the Proprietor of the said unit and the Appellant is co-owner of the said unit. He relied upon the decision of the Tribunal in the case of M/s Elex Knitting Machinery Co. Vs CCE Chandigarh-I  2003 (158) ELT 499 (Tri-Del.), which was upheld by the Honble Punjab & Harayana High Court as reported in 2010 (258) ELT 486 (P&H). He also argued that the goods were semi-finished nature and not marketable. He relied upon the decision of the Honble Supreme Court in the case of M/s Indian Cable Co. Ltd. Vs Collector of Cen.Ex., Calcutta  1994 (74) ELT 22 (SC).

4. On the other hand, the ld.Authorised Representative for the Revenue reiterates the findings of the Commissioner (Appeals). He submits that admittedly the appellant used the brand name of the other Company M/s Farm Manufacturing Co. Delhi. Hence, they are not eligible for the benefit of SSI exemption notification.

5. After hearing both the sides and on perusal of the records, we find that the appellants used the brand name FAMCOM which is owned by other unit M/s Farm Manufacturing Co. Delhi, a proprietorship firm. One of the Directors of the Appellant Company is the proprietor of the said unit. It is also contended by the appellant that after clubbing the value of the clearances of both the units are within the prescribed limit of exemption during the relevant period. The Tribunal in the case of M/s Elex Knitting Machcinery Co. (supra) held as under:-

6. Apart from this, even otherwise legally it cannot be concluded that the appellants were using the brand name of another person. The brand name ELEX, according to the Department belonged to M/s. Elex Engineering Works. But Shri Pritam Singh who is the proprietor of the appellants firm, is one of the partners in that firm. Being co-owner of the brand name in the above said firm, he could not be said to had used the brand name of another person, in the manufacture and clearance of the goods in his individual capacity. He cannot be legally said to be running another firm of M/s. Elex Knitting Machinery, as single person cannot constitute any firm under the law. Therefore, being already co-owner of the brand name, he was competent to use the same.

6. Ld.Authorised Representative for the Revenue submitted that in that case, the appellants were a partnership firm. In our considered view, in the present case, one of the Directors is the Proprietor of other unit and therefore, the case of M/s Elex Knitting Machinery Co. (supra) would squarely apply in the present case.

7. In view of the above discussion, following the decision of the Tribunal in the case of M/s Elex Knitting Machinery Co. as upheld by Honble Punjab & Haryana High Court, we allow both the appeals filed by the Appellants with consequential relief.

(Dictated & Pronounced in Court)

(P.S. Pruthi) (P.K. Das)

Member (Technical) Member (Judicial)

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