ORDER
S.L. Peeran, Member (J)
1. This appeal arises from Order-in-Original No. 72/92 dated 31.3.1992 passed by Commissioner of Central Excise, Hyderabad denying the benefit of Notification No. 175/96-CE dated i. 3.1986 on the ground that the appellants have affixed on the printed label the Trade mark/Symbol of MARUTI UDYOG LIMITED. He has also held that there is suppression in the matter and hence larger period is to be invoked in the matter for demands arising for the period 1.10.1987 to 30.5.1990. The ground taken by the appellants was that they were manufacturing Wire harness classifiable under Heading 8544.00 of the Tariff. There is no dispute with regard to the classification of the product. The only question is as to whether the affixing of the name MARUTI on the label annexed to the final product namely Wire harness supplied to Maruthi would disentitle the appellants from the benefit of SSI Exemption under 175/86. In terms of Para 7 of the said Notfn., the exemption contained in the Notfn., shall not apply if the specified goods, where the manufacturer affixed the specified goods with a Brand name or Trade name (Registered or not) of another person who is not eligible for the grant of exemption under this notification. It was contended by the appellants that they were not affixing the Brand name MARUTHI on the specified goods and in terms of Para 7 of the Notfn., the affixation has to be done on the specified goods. It was stated by them that they were only putting the name MARUTHI for identification purpose on the tag and not on the goods. However this contention was negative. The next plea raised was that the demands were time barred and that initially the Show cause notice was issued by the Assistant Commissioner on 4.12.1990 for the period April, 1990 to October, 1990 for an amount Rs. 6,94,646.26/-. Thereafter the Collector issued the Show cause notice on 10.7.1991 after a lapse of considerable period of the period in question namely 1.10.1987 to 30.5.1990 and hence the facts being known by the Department earlier itself, the extended period on the ground of suppression cannot be invoked in subsequent notice. This was also noted by the Commissioner.
2. Arguing for the appellants, Learned Advocate submits that both the points as noted by the Commissioner has been dealt in a large number of decisions. He brought to the notice of the Bench the case of Trimurti Weldmesh (Pvt.) Limited, New Delhi as reported in 1993 (21) ETR 12 : 1993 (46) ECR 427 (T) wherein an identical circumstance the Brand name was not affixed on the specified goods and it was only embossed at the Forging stage before such forgings were received at the appellants’ unit. Despite this fact, the Tribunal after examining a large number of judgements held that the appellants were entitled to the benefit of the Notification for the reasons stated therein. He submits that the Trimurti Weldmesh (Pvt.) Ltd. case was in a worse situation in which case there was the embossment of the name “FITWELL” before the forging stage on the goods, while in the present case there is no embossment or putting the identification or Trade mark on the specified goods. He submits that it was only on the tag which accompanied the goods and it was only for the purpose of identification. He submits that this was done only because the appellants were also supplying the goods to other units like Nissan. The goods were not embossed with any brand name. They were- general purpose goods used by other motor vehicles’ manufacturers as well. The goods were manufactured as per the specifications of each motor vehicle manufacturer but it was not embossed with trade mark. Therefore he submits that in the light of this judgement the benefit is to be extended. He further points out that the larger period cannot be invoked in the present case as the premises was being inspected from time to time. Further the earlier Show cause notice issued by Assistant Commissioner was within the knowledge of the Department and hence after a lapse of time the Collector cannot allege suppression. In this regard, he relies on the judgements rendered in the case of Patel Metal Works v. CCE and CHS. as , BHEL Ancillary Association v. CCE as and that of Neyveli Lignite Corporation as . In all these judgements, the Tribunal has held that larger period is not extendable if there were earlier Show cause notices issued by the Department on the same case on action.
3. Learned DR reiterates the reasoning given by the Commissioner in the impugned order.
4. On a careful consideration of the submission, we notice that the facts of the case are not controverted. From the facts, H is clear that the specified goods manufactured by the appellants was not embossed with any trade mark/symbol of MARUTHIUDYOG LIMITED. It was only on the tag (Mark was printed). In terms of Para 7 of the Notification, the Brand name or Trade name is required to be affixed on the specified goods. In this case admittedly no such affixation of Brand name or Trade name was done on the specified goods. In a similar situation, as in the case of Trimurti Weldmesh (Pvt.) Limited (Supra), the Tribunal granted the benefit after examining the entire case law. In that case, the situation was still worse in as much as the assessee received the goods with the Trade name embossed at the forging stage. Yet the Tribunal on analysis of the Proviso Para 7 granted the benefit. Likewise similar benefit was extended in the case of Tracko International v. CCE as reported in 1998 (25) RLT 691 : 1998 (76) ECR 361 (T) wherein it was noticed that the Brand name was affixed only for the purpose of identification and not on the specified goods. Hence the appellants succeed on merits in this case. The issue of time bar is also in appellant’s favour. In the case of Neyveli Lignite Corporation case, the Tribunal had noticed that the Department had issued larger number of notices. Subsequently notices were issued by Commissioner alleging suppression. On analysis the Tribunal held that as the facts were known to the Department in the earlier show cause notice, therefore any subsequent show cause notice alleging suppression cannot be brought in and on that ground it was held that larger period was not extendable. This principle has again been followed in large number of cases by the Tribunal and the principle laid down has not been set aside by the Higher Courts. Further the Supreme Court judgement in the case of Cosmic Dyes as has laid down that intention to evade duty is required to be proved. -In this case, the appellants were manufacturing the goods on their own account and they had not affixed the Brand name on the specified goods. Therefore the revenue has not proved that the assessee had concertly (sic) and consciously evaded duty by suppressing these facts. In the case of CCE v. Maharashtra Scooters Ltd. as reported in 1997 (68) ECR 32, Hon’ble Supreme Court on analysis of the historical background of the third proviso to Section 36(2) of the Act held that in such cases the demands have been limited only to 6 months and beyond that would be considered as time-barred. In the case of Sonarome Chemicals Pvt. Ltd. v. CCE as reported in 1998 (26) RLT 96 : 1998 (77) ECR 153 (T), the Tribunal held in similar facts that larger period is not invokable in second show cause notice when on the same set of facts a show cause notice for another period was issued. They had taken into consideration including that of Kamal Plywood and Allied Industries v. CCE as wherein a similar view had been expressed. In that view of the matter, we are of the considered opinion that the appellants succeed both on merits as well as on limitation and hence the Impugned order is set aside and the appeal is allowed with consequential reliefs as per law.
(Pronounced and dictated in the open Court).