ORDER
Jyoti Balasundaram, Vice-President
1. The application for waiver of pre-deposit of duty of Rs. 17,53,191/- and penalty of Rs. 10,000/- arises out of the order of the Commissioner of Central Excise (Appeals), Bangalore, who has upheld the duty demand and penalty on the ground that the applicants herein use the brand name of another person and were, therefore, not entitled to avail the benefit of SSI Notifications 16/97, dated 1-9-1997; 8/98, dated 2-6-1998; 9/98, dated 2-6-1998; 8/99, dated 18-2-1999 and 9/99, dated 28-2-1999.
2. We have heard both sides.
3. We find that the department has relied upon clearance of goods to M/s. Fine Components and Tools India Ltd. and M/s. Applicomp India Ltd. which bore the name “Transpade” belonging to M/s. Transpade, a proprietary concern of Shri S.B. Ghorpade. The contention of the applicants is that the proprietary concern cleared the goods to these two customers with their own brand name and that they did not clear any goods bearing the brand name “Transpade”. Their further contention is that the demand is barred by limitation.
4. The learned DR opposes the prayer on the ground that the material on record clearly shows that the goods were cleared by the applicants herein with the brand name belonging to the proprietary concern and that the demand is not time-barred for the reason that the applicants had not intimated to the department that they were using the brand name of the proprietary concern on their goods.
5. We have carefully considered the rival submissions. We find prima facie force in the applicants’ contention that the demand is barred by limitation in the light of the Tribunal’s order in Queen Electrical Industries v. CCE, Madurai, 2002 (150) E.L.T. 284 in which the Bench has held, relying upon the Tribunal’s order in Intercity Cable System (P) Ltd. v. CCE, 1995 (80) E.L.T. 445 and upheld by the Supreme Court in 1996 (88) E.L.T. A68, that the non-disclosure of the brand name in the declaration does not amount to suppression so as to make the extended period of limitation available to the department.
6. We, therefore, waive pre-deposit of duty and penalty and stay recovery there of pending the appeal.