{"id":183209,"date":"2003-02-19T00:00:00","date_gmt":"2003-02-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/p-b-pharmaceuticals-p-ltd-vs-collector-of-central-excise-on-19-february-2003"},"modified":"2018-02-12T06:32:20","modified_gmt":"2018-02-12T01:02:20","slug":"p-b-pharmaceuticals-p-ltd-vs-collector-of-central-excise-on-19-february-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/p-b-pharmaceuticals-p-ltd-vs-collector-of-central-excise-on-19-february-2003","title":{"rendered":"P & B Pharmaceuticals (P) Ltd vs Collector Of Central Excise on 19 February, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
P & B Pharmaceuticals (P) Ltd vs Collector Of Central Excise on 19 February, 2003<\/div>\n
Bench: Syed Shah Quadri, Ashok Bhan<\/div>\n
           CASE NO.:\nAppeal (civil)  3969 of 1995\n\nPETITIONER:\nP & B PHARMACEUTICALS (P) LTD.\n\nRESPONDENT:\nCOLLECTOR OF CENTRAL EXCISE\n\nDATE OF JUDGMENT: 19\/02\/2003\n\nBENCH:\nSYED SHAH MOHAMMED QUADRI & ASHOK BHAN\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
2003(2) SCR 252<\/p>\n
The following Order of the Court was delivered :\n<\/p>\n
This appeal, by the assessee, is from the final order No. 290\/94-A of the
\nCustoms, Excise & Gold (Control) Appellate Tribunal in Appeal No.E\/ 03\/92-
\nA, dated October 17, 1994.\n<\/p>\n
The short point that arises for consideration is: whether the Tribunal
\nerred, in upholding the order of the Excise authorities in invoking the
\nproviso to Section 11-A of the Central Excise Act, 1944; if so, whether the
\norder confirming penalty is sustainable.\n<\/p>\n
It will be necessary to refer to the facts giving rise to this appeal.\n<\/p>\n
The appellant-assessee is a registered small scale unit. It manufactures
\npatent and proprietary medicines. It uses a logo “P\/B”. The assessee claims
\nthat the logo was assigned to it by M\/s. P&B Laboratories Ltd. by a deed of
\nassignment dated July 1, 1984. The dispute relates to the period from May
\n1, 1985 to December 31, 1989. On March 25, 1985 a show cause notice was
\nissued to the assessee proposing to demand duty on the basis of the price
\nat which its distributor, M\/s. Pharmachem Distributors, sold the goods in
\nthe course of whole-sale trade on the ground that the said distributor was
\na related person. The assessee submitted its reply. The Assistant Collector
\nof Customs & Central Excise, Nadiad dropped the proceedings by order dated
\nMay 10, 1985.\n<\/p>\n
It is appropriate to note here that the Central Government issued
\nNotification No. 175\/36-CE, dated March 1, 1986 granting exemption to small
\nscale units subject to the terms and conditions specified therein. That
\nnotification was subsequently amended and para 7 was inserted therein.\n<\/p>\n
On January 27, 1988 and, thereafter, on July 26, 1988 show cause notices
\nwere issued to the assessee on the ground that the assessee and its
\ndistributor, M\/s Pharmachem Distributors, have mutual interest and,
\ntherefore, the price at which the distributor sold the godds in the market
\nought to be adopted for the purposes of levy of excise duty on the
\nassessee. The proceedings pursuant to these show cause notices were also
\ndropped by the Assistant Collector, after considering the reply of the
\nassessee, by order dated September 26, 1988.\n<\/p>\n
A fourth show cause notice was issued to the assessee on June, 12, 1990.
\nThe present appeal arises out of those proceedings. The said notice is very
\nlengthy but it is based mainly on two grounds:\n<\/p>\n
The first ground is that the distributor of the appellant is a related
\nperson, therefore, there has been short levy of duty and inasmuch as there
\nhas been suppression of this fact, proviso to Section 11-A of the Central
\nExcise Act (for short, ‘the Act’) was attracted and the assessee was liable
\nto pay duty for the extended period from May 1, 1985 to December 12, 1989.\n<\/p>\n
The second ground is that after insertion of para 7 in Notification No.
\n175\/86-CE, the assessee is not entitled to exemption as the assessee and M\/
\ns. P&B Laboratories Ltd. have been using the logo and it did not disclose
\nthis fact; duty was demanded for the period commencing from October 10,
\n1987 till the date of notice (12.6.1990) invoking the proviso to Section
\n11-A of the Act.\n<\/p>\n
On both the grounds, the Collector confirmed the demand pursuant to the
\nshow cause notice dated June 12, 1990, and imposed a penalty of Rs.
\n20,00,000 on the assessee by his order dated October 21,1991.\n<\/p>\n
Dissatisfied with the said order of the Collector, the assessee filed an
\nappeal before the Customs, Excise & Gold (Control) Appellate Tribunal (for
\nshort ‘the CEGAT’). The CEGAT upheld the order of the Collector but for
\npurposes of quantification of duty after allowing permissible deduction,
\nthe matter was remitted to the Collector. The penalty was, however, reduced
\nto Rs. 15,00,000. The CEGAT thus allowed the appeal in part on October 17,
\n1994. That is the order which is under challenge before us.\n<\/p>\n
Mr. Lakshmikumaran, the learned counsel appearing for the appellant,
\ncontends that so far as the demand of duty on the basis of the distributor
\nbeing a related person is concerned, all facts in this regard were placed
\nbefore the concerned authorities and, therefore, there has been no
\nsuppression of fact; in any event, submits the learned counsel, when the
\nshow cause notice was issued in 1985 and, thereafter, when two more show
\ncause notices were issued in 1988, all these facts were before the
\nconcerned authorities, therefore, it was not open to the Central Excise
\nauthorities to invoke proviso to Section 11-A of the Act for making a
\ndemand of duty for the extended period.\n<\/p>\n
Mr. Jaideep Gupta, the learned senior counsel for the Revenue has, on the
\nother hand, contended that insofar as the question of related person is
\nconcerned, as the assessee had failed to give such a declaration in a
\nseparate form along with the classification list, there is, in that,
\nsuppression of fact and the authorities were justified in invoking the
\nproviso to section 11-A of the Act for demand of duty for the extended
\nperiod.\n<\/p>\n
We have indicated above the facts which make it clear that the question
\nwhether M\/s. Pharmachem Distributors was a related person has been the
\nsubject-matter of consideration of the Excise authorities at different
\nstages, when the classification was filed, when the first show cause notice
\nwas issued in 1985 and also at the stage when the second and the third show
\ncause notices were issued in 1988. At all these stages, the necessary
\nmaterial was before the authorities. They had then taken the view M\/s.
\nPharmachem Distributors was not a related person. If the authorities came
\nto the conclusion subsequently that it was a related person, the same fact
\ncould not be treated as a suppression of fact on the part of the assessee
\nso as to saddle with the liability of duty for the larger period by
\ninvoking proviso to Section 11-A of the Act. So far as the assessee is
\nconcerned, it has all along been contending that they were not related
\npersons, so, it cannot be said to be guilty of not filling up the
\ndeclaration in the prescribed proforma indicating related persons. The
\nnecessary facts had been brought to the notice of the authorities at
\ndifferent intervals from 1985 to 1988 and further they had dropped the
\nproceedings accepting that M\/s. Pharmachem Distributors was not a related
\nperson. It is, therefore, futile to contend that there has been suppression
\nof fact in regard to M\/s. Pharmachem Distributors being a related person.
\nOn that score, we are unable to uphold the invoking of the proviso to
\nSection 11-A of the Act for making the demand for the extended period.\n<\/p>\n
The second question relates to availing of exemption after the insertion of
\npara 7 in Notification No. 175\/86-CE, dated March 1, 1986. Para 7 reads as
\nfollows:\n<\/p>\n
“7. The exemption contained in this notification shall not apply to the
\nspecified goods where a manufacturer affixes the specified goods with a
\nbrand name or trade name (registered or not) of another person who is not
\neligible for the grant of exemption under this notification.\n<\/p>\n
We may also refer to Explanation VIII to the notification on which reliance
\nis placed by Mr. Jaideep Gupta. Explanation VIII runs thus:\n<\/p>\n
“Explanation VIII.-“Brand name” or “trade name” shall mean a brand name or
\ntrade name, whether registered or not, that is to say a name or a mark,
\nsuch as symbol, monogram, label, signature or invented word or writing
\nwhich is used in relation to such specified goods for the purpose of
\nindicating, or so as to indicate a connection in the course of trade
\nbetween such specified goods and some person using such name or man with or
\nwithout any indication of the identity of that person.”\n<\/p>\n
From a perusal of para 7 of Notification No. 175\/86-CE, it is clear that
\nthe exemption granted by the notification is not applicable to the
\nspecified goods where a manufacturer affixes the specified good with a
\nbrand name or trade name (registered or not) of another person who is not
\neligible for the grant of exemption under the said notification. There is
\nno dispute that the assignor M\/s. P & B Laboratories Ltd. is not entitled
\nto exemption under the notification. It is evident that the test mentioned
\nin para 7 to deny the benefit of exemption is, use of a logo by a
\nmanufacturer of which he is not the owner. It is only when a manufacturer
\nof the specified goods affixes them with a logo-brand name or trade name-of
\nanother person who is not eligible for the exemption that he becomes
\nineligible to avail the benefit under the notification. Use of the logo of
\nthe manufacturer by other person, whether a assignor or a third party, has
\nno relevance for purposes of para 7. That is not the import of Explanation
\nVIII.\n<\/p>\n
Insofar as the order of the Collector, Central Excise, is concerned, it
\nappears that documents were filed before the Collector to prove assignment
\nof the “logo” in favour of the appellant but on the ground that they were
\nnot legible, the Collector declined to take note of them. In any event, he
\ndid not accept the assignment of logo-and proceeded on the footing that the
\nassignment of logo in favour of the appellant was not proved. Therefore, on
\nthe basis that logo was of M\/s. P&B Laboratories Ltd., he came to the
\nconclusion that the assessee was not entitled to the exemption. The
\nappellant filed in the appeal before the CEGAT, by way of additional
\nevidence, the order passed by the trade mark authorities. The additional
\nevidence was allowed by the CEGAT; it accepted the assignment of logo in
\nfavour of the appellant but denied the exemption on the ground that it was
\nbeing used by the assignor as well.\n<\/p>\n
However, Mr. Jaideep Gupta submits that the Tribunal did not accept that
\nthere has been assignment of logo in favour of the assessee. We are unable
\nto accept the contention of the learned counsel. The tenor of the order,
\n“the assessee had produced certain documents such as registration form,
\ntrade mark authorities assigning the trade mark to them but the fact
\nremains that there was material evidence by way of seizure of goods
\nmanufactured by M\/s. P&B Laboratories bearing the same Logo much after the
\nalleged transfer of trade mark to the appellants’* discloses that the
\nTribunal accepted that there has been an assignment but proceeded to deal
\nwith the case of inapplicability of the exemption under the notification on
\nthe ground that the logo was being used by M\/s P&B Laboratories also. We
\nhave already indicated above that use of logo of the manufacturer by third
\nparties is alien for purposes of denial of exemption on the strength of
\npara 7 of the notification. In this view of the matter, we are unable to
\nuphold the order of the Tribunal denying the exemption to the assessee.\n<\/p>\n
In any event, the ground that the assessee has suppressed the fact that
\nM\/s. P&B Laboratories was also using the logo for availing the benefit
\nunder the notification cannot be a valid reason to invoke the proviso to
\nSection 11-A of the Act. There is no obligation on the owner of a logo to
\nmake a roving enquiry to ascertain whether any other person is also using
\nhis logo and disclose it to the authorities to avert a possible allegation
\nof suppression of fact for purposes of invoking the proviso.\n<\/p>\n
For all these reasons, we are of the view that the proviso to Section 11-A
\nis not available to the Revenue. Consequently, we hold that the CEGAT erred
\nin confirming the order of the Collector.\n<\/p>\n
The last point that remains to be mentioned is about the penalty imposed on
\nthe assessee. It is not in dispute that if the proviso to Section 11-A of
\nthe Act cannot be called in aid, imposition of penalty can not be justified
\nunder Rule 173Q of the Central Excise Rules, 1944. See: Collector of
\nCentral Excise v. H.M.M. Ltd.,<\/a> (1995) 76 ELT 497 and Nagpur Alloy Castings
\nLtd. v. Collector of Central Excise<\/a> (2002) 142 ELT 515. The order imposing
\npenalty is thus unsustainable.\n<\/p>\n
The appeal is, accordingly, allowed and the order of the CEGAT under
\nchallenge is set aside. In the circumstances of the case, the parties are
\ndirected to bear their own costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India P & B Pharmaceuticals (P) Ltd vs Collector Of Central Excise on 19 February, 2003 Bench: Syed Shah Quadri, Ashok Bhan CASE NO.: Appeal (civil) 3969 of 1995 PETITIONER: P & B PHARMACEUTICALS (P) LTD. RESPONDENT: COLLECTOR OF CENTRAL EXCISE DATE OF JUDGMENT: 19\/02\/2003 BENCH: SYED SHAH MOHAMMED QUADRI & ASHOK […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-183209","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nP & B Pharmaceuticals (P) Ltd vs Collector Of Central Excise on 19 February, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/p-b-pharmaceuticals-p-ltd-vs-collector-of-central-excise-on-19-february-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"P & B Pharmaceuticals (P) Ltd vs Collector Of Central Excise on 19 February, 2003 - 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