ORDER
Shri Brahma Deva, Member (J)
1. This stay application if filed by the applicant for waiver of pre-deposit of duty amounting to Rs. 31,51,829/- and equivalent penalty under Section 11AC of the Central Excise Act, 1944 in addition to interest.
2. After hearing for some time with reference to the stay petition we felt that the matter itself can be disposed of on limited issue.
3. Shri Joseph Kodianthara, learned Advocate appearing for the applicant submitted that the issue relates to `brand name’. Eligibility of the exemption in terms of Notification No 1/93/CE as amended has been denied on he ground that applanate was using `brand name’ belong to another person. He submitted that as early as 1994, the Assistant Commissioner has issued a Show Case Notice seeking to deny the Appellant the benefit of the said exemption Notification on the ground that Appellant was using the brand name “Mr Butlers” of M/s Protech Appplicances Private Ltd. The Appellant (Mr Butlers) has replied taking the stand that he was using his own brand name. In addition to the reply the opposite party M/s Protech Appliances Pvt Ltd. conceded that the brand name does not belong to another person exclusively and the matter is pending before the concerned authority. He also referred to the affidavit of the opposite party stating that the appellant having better title in respect of the brand name. He also drew our attention to the relevant portion of the order. Considering the reply as well as affidavit filed by the opposite party, the Assistant Collector as per order dt. 25.1.95 has dropped the proceedings. Subsequently the Commissioner on the very issue has proceeded to raise the demand. Shri Joseph, learned Advocates submitted that apart from the merit of the case, series of documents placed before the Commissioner in support of contention that brand do not belong to M/s Protech Appliances Private Ltd but the same was not considered by the Commissioner as can be seen from the order. He said that the Commissioner had simply referred to the documents but no clear finding in respect of the documents placed. In view of the facts and circumstances the matter is required to be remanded to the concerned adjudicating authority to examine the issue afresh.
3. The Departmental Representative has no objection to remand the matter to the concerned adjudicating authority.
4. On going through the impugned order and considering the facts and circumstances and submissions made by both sides, we are of the view that there is some justification in the prayer made by the appellants. In the view we have taken, we are remanding the matter to concerned adjudicating authority to examine the issue afresh and to pass an appropriate order in accordance with the law on providing an opportunity to the party. Accordingly we set aside the impugned order and appeal is disposed of in the above terms.
(Pronounced and dictated in the open court)