Commissioner, Central Excise & Service ... vs M/S Vim Traders

Appeal No.E/904/2007-DB [Arising out of OIA-46/2007/AHD-III/CE/DK/COMMR-A, dt.18.05.2007, passed by Commissioner (Appeals), Central Excise & Service Tax, Ahmedabad-III]

Commissioner, Central Excise & Service Tax, Ahmedabad-III Appellant

Vs

M/s Vim Traders Respondent

Represented by:

For Appellant: Shri S.K. Shukla, Authorised Representative For Respondent: Shri M.A. Patel, Consultant

For approval and signature:

Honble Mr. P.K. Das, Member (Judicial) Honble Mr. P.M. Saleem, 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 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:

HONBLE MR. P.K. DAS, MEMBER (JUDICIAL) HONBLE MR. P.M. SALEEM, MEMBER (TECHNICAL)

Date of Hearing/Decision: 17.08.2015

Order No. A/11212 / 2015, dt.17.08.2015

Per: P.K. Das

Revenue filed this appeal against the order of Commissioner (Appeals), where the Adjudication order was set aside.

2. After hearing both the sides and on perusal of the records, we find that the Respondents were engaged in the manufacture of Coated and Uncoated Microns Minerals, classifiable under Sub Heading No.3802.00 and 2540.29 of the First Schedule to the Central Excise Tariff Act, 1985. It has been alleged that the Respondents use the brand name VIMCRO owned by M/s Vimal Microns Ltd. The Adjudicating authority denied the benefit of Exemption Notification No.8/2003-CE, dt.01.03.2003 and confirmed the demand of duty alongwith interest and imposed penalty. The Commissioner (Appeals) set aside the Adjudication order.

3. On perusal of the impugned order, we find that the main contention of the Commissioner (Appeals) is that the Department failed to establish the owner of the brand name of other person and no person came forward to claim the ownership of the brand name VIMCRO. It is seen from the record that the Director of M/s Vimal Microns Ltd claimed the ownership of the brand name in December 1995. The period of dispute in the present appeal is April 2004 to March 2005. We find that the Respondents had not seriously disputed this fact and therefore, the denial of SSI exemption on merit is justified.

4. The learned Consultant appearing on behalf of the Respondent also contested the demand as barred by limitation. It is also contended that the cum-duty benefit and MODVAT Credit were not extended, while quantifying the demand of duty. We find that the Commissioner (Appeals) had not given detailed findings on the issue of limitation. The learned Authorised Representative for the Revenue submits that the Show Cause Notice dt.23.11.2005 is in respect of M/s Vimal Microns Ltd. In our considered view, the Commissioner (Appeals) should have examined the issue of limitation in detail and the other claims of the Respondent.

5. In view of the above discussion, we uphold the demand of duty alongwith interest on merit. We direct the Commissioner (Appeals) to re-examine the grounds of limitation, the benefit of cum-duty price and CENVAT Credit. Needless to say that the Commissioner (Appeals) shall give a proper opportunity of hearing before passing any order.

6. The appeal is disposed of in above terms.

(Dictated & Pronounced in Court)

(P.M. Saleem) (P.K. Das) Member (Technical) Member (Judicial)

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