Cce, Jallandhar vs M/S Kalsi Engineers
- CitationExcise Appeal No. 2400 of 2006
Ratio decidendi
The rule this decision rests on
The Tribunal holds that where goods are cleared under a brand name owned by another person, and full Central Excise duty has been paid on those clearances, their value cannot be aggregated with the respondent's own clearances for the purpose of determining eligibility for the small-scale industry exemption under Notification No. 8/2002-CE, because the brand name does not belong to the manufacturer. The Tribunal further holds that, on the material before it, the question whether the brand name is owned by the manufacturer is one of fact to be decided on the evidence; here the evidence established that the brand name belonged to a third party and there was no evidence that it belonged to the respondent, so the Commissioner (Appeals)'s finding to that effect is upheld and the Revenue's aggregation claim fails.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of the Order-in-Appeal No. 229/CE/JAL/2005 dated 31/08/2005 passed by The Commissioner (Appeals), Customs & Central Excise, Jallandhar.]
For Approval and signature :
Honble Shri Ashok Jindal, Member (Judicial)
Honble Shri B. Ravichandran, Member (Technical)
1. Whether Press Reporters may be allowed to see :
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it would be released under Rule 27 of :
the CESTAT (Procedure) Rules, 1982 for
publication in any authoritative report or not?
3. Whether their Lordships wish to see the fair :
copy of the order?
4. Whether order is to be circulated to the :
Department Authorities?
CCE, Jallandhar Appellant
Versus
M/s Kalsi Engineers Respondent
Appearance
Shri M.S. Negi, Authorized Representative (DR) for the appellant.
None for the Respondent.
CORAM: Honble Shri Ashok Jindal, Member (Judicial)
Honble Shri B. Ravichandran, Member (Technical)
Final Order No. 52329/2015 Dated : 21/07/2015
Per. B. Ravichandran :-
The present appeal by the Revenue is against order dated 31/08/2005 of Commissioner (Appeals). The facts in brief are that the respondent were manufacturers of various types of agricultural implements, PD Pumps and parts etc. The respondent availed SSI exemption under Notification No. 8/2002-CE in respect of various goods like valves, fittings, castings and parts. They were manufacturing PD Pumps and parts thereof with the brand name Kalsi which belongs to another person. For this clearance they have discharged full rate of duty. The case of the Revenue is that clearance of all goods manufactured by the respondent should be considered for arriving at the aggregate value. In other words the total turnover of goods manufactured and cleared in their brand name and the brand name of other person should be clubbed together as both the brand names are same Kalsi. Show cause notice dated 15/07/2004 was issued to the respondent and was adjudicated by the original authority vide order dated 20/01/2005 confirming the demand and imposing equal penalty. On appeal, the learned Commissioner (Appeals) set aside the original order and held that the value of clearance of goods with another persons brand name cleared and on full payment of duty cannot be included in the aggregate value and as such the appellant is not liable to any further duty. The present appeal is against this impugned order. In the appeal much emphasis has been made to the effect that there is no agreement or understanding with other owner of brand name in respect of PD Pumps and there is no order placed by M/s Kalsi Metal Works, owner of brand name Kalsi, in respect of these branded products. The Revenue pleaded that the lower Appellate Authority erred in holding that PD Pumps cleared with the brand name of Kalsi on payment of duty cannot be considered for addition in the aggregate turnover. Further, in the sale invoice the general description of agricultural implements was mentioned by the respondent.
2. The learned AR reiterated the points in appeal. None appeared for the respondent. On perusal of the appeal papers it is clear that the only point for consideration is as to whether the respondent is correct in paying full Central Excise duty in respect of PD Pumps on the ground that these were with the brand name of another person. The Revenues view is that the value of PD Pumps are also to be added to arrive at the SSI exemption limit. We find that the learned Commissioner (Appeals) examined in detail these issues and arrived at the categorical conclusion that the brand name Kalsi used by the respondent for PD Pumps belongs to M/s Kalsi Metal Works, Jallandhar only and that being the case no SSI exemption is applicable in respect of such goods. There is no evidence on record to show that the brand name Kalsi for PD Pumps and spares thereof belonged to the respondent. Regarding classification for sales tax purpose, the learned Commissioner (Appeals) also given his finding discounting the Revenues view. As such, we find no reason to disagree with the findings of the lower Appellate Authority and accordingly dismiss the appeal.
(Operative part of the order pronounced in the open court.)
(Ashok Jindal)
Member (Judicial)
(B. Ravichandran)
Member (Technical)
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