ORDER
P.S. Bajaj, Member (J)
1. Shri T.S. Krishnan for the appellant requests for an adjournment on the illness of the Counsel. But, there is no application by the Counsel regarding his illness and inability to appear today. Therefore, we are unable to accept the request of Mr. Krishnan. We have heard the ld. JDR and gone through the record. In the stay application, the appellants have sought waiver of pre-deposit of duty amount of Rs. 6,16,162/- confirmed against them with equal amount of penalty under section 11AC and further penalty amount of Rs. 10/000/- imposed under Section 173Q of the Central Excise Act, 1944.
2. We have gone through the impugned order and record. We find that the duty has been demanded from the appellants as they are using the brand name ‘LSL’ which is owned by a Malaysian Company on their product “Spherical Stainless Steel Water Tanks” in the manufacture in which they are engaged. Their only plea before the authorities below was that the foreign company has allowed’ them to use the brand name and they had applied for the Registration in their favour under Section 18 of the Trade and Merchandise Act, 1958. But, we find from the record that no registration of the brand name has been effected in their favour so far. The consent given by the foreign company is of no avail to the appellants, as they cannot be permitted to avail the SS1 exemption under Notification No. 8/98, dated 2-6-98 in the face of specific provision contained therein that in case of user of a brand name of an another person, the manufacturer will not be entitled to avail the benefit of the Notification. Therefore, we do not find, prima facie, any legal infirmity or illegality in the impugned order passed by the Commissioner (Appeals). The appellants prima facie have, thus no case.
3. In the stay application the appellants have also no doubt averred they had suffered financial losses year after year till the year ending 31st March, 2000. But, they have not placed on record any documentary evidence to substantiate the same. No copy of the statement of account/balance sheet upto date has been produced by them. We, therefore, are unable to accept the plea of financial hardship of the appellants.
4. Therefore, keeping in view all the facts and circumstances referred to above, we do not find sufficient ground to waive the pre-deposit of duty amount. Consequently, we direct the appellants to pre-deposit the entire duty amount of Rs. 6,16,162/- within three months from today. On making this deposit, the requirement of pre-deposit of entire penalty amounts, shall stand waived and recovery stayed thereof till the disposal of the appeal. But, if the amount is not deposited within the stipulated period, then the appeal of the appellants shall be liable to be dismissed under Section 35F of the Central Excise Act, 1944. To come up for reporting compliance on 5th May, 2003.