Abhay Industries VERSUS C.C.E. & S.T.-Rajkot

Excise Appeal No. 10682 of 2013-DB

(Arising out of OIA-63-64/2012/RAJ/CE/AK/COMMR-A/AHD Dated- 26/02/2013 passed by

Commissioner of Central Excise-RAJKOT)

 

Abhay Industries

VERSUS

C.C.E. & S.T.-Rajkot

With

Excise Appeal No. 10683 of 2013

(Arising out of OIA-63-64/2012/RAJ/CE/AK/COMMR-A/AHD Dated- 26/02/2013 passed by

Commissioner of Central Excise-RAJKOT)

Rajesh H Punatar Partner

VERSUS

C.C.E. & S.T.-Rajkot

 

APPEARANCE:

Shri. Paresh Sheth, Advocate for the Appellant

Shri. Tara Prakash, Assistant Commissioner (AR) for the Respondent

CORAM:

HON’BLE MR. RAMESH NAIR, MEMBER (JUDICIAL)

HON’BLE MR. RAJU, MEMBER (TECHNICAL)

Final Order No. A/ 10009-10010 /2023

DATE OF HEARING: 22.12.2022

DATE OF DECISION:05.01.2023

RAMESH NAIR

The issue involved in the present case is that whether the appellant is

eligible for SSI Exemption available under Notification No.8/2003-C.E. dated

01.03.2003. The case of the department is that since the appellant has used

brand “Bintex” belonging to some other person, benefit of exemption under

the said notification is not available.

Shri Paresh Sheth, learned counsel appearing on behalf of the

appellant submits that the „‟Bintex‟‟ brand is registered in the name of family

members of the appellant and appellant is also one of the owner of the

„„Bintex‟‟ brand as per the Trade Mark Registration therefore, it cannot be

said that the appellant have used brand name of another person accordingly,

the appellant is eligible for SSI exemption under notification no.8/2003-CE

dated 01.03.2003. He further submits that even in case though the brand

belongs to family member, all the family members are entitle to use the

brand for the purpose of availing SSI exemption. As regard the penalty

imposed on Shri Rajesh Harshdrai Punatar, he submits that Shri Rajesh

Harshdrai Punatar is a partner of M/s. Abhay Industries, therefore, the

partner cannot be penalized separately under Rule 26. He placed reliance on

the following judgments:- (Page 3)

 M/s Shreeji Enterprise-2018-12-TMI-494 -CESTAT-Ahmedabad

 M/s Yash Machine Tools-2019-02-TMI-1415-CESTAT Ahmeddabad

 Braco Sales Corporation-2019-369-ELT-789-CESTAT-Mumbai

 Laxmi Industries-2013-298-ELT-435-CESTAT-Ahmedabad

 Pravin N. Shah-2014-305-ELT-480-Guj-HC

 Water & Co. -2017-356-ELT-446-Trib-Chennai

 Sunshine Overseas-2016-339-ELT-431-Trib-Ahmd

 Jay Prakash Motwani-2010-258-ELT-204-Guj-HC

Shri Tara Prakash, learned Assistant Commissioner (AR) appearing on

behalf of the revenue reiterates the finding of the impugned order.

On careful consideration of the submission made by both the sides and

perusal of records. We find that the limited issue to be decided is that

whether the appellant firm is entitle to avail exemption Notification No.

8/2003-CE dated 01.03.2003 in respect of the goods cleared by the

appellant bearing the brand name of “Bintex‟‟. We find that the “Bintex”

brand is registered with Trade Mark Registry wherein, the appellant partner

Shri Rajesh Kumar Harshdrai Punatar is also one of the owner. In this

regard, we give here under the scanned copy of the Trade Mark Registration.

From the above registration, it is clear that the appellant‟s partner Shri

Rajesh Kumar Harshdrai Punatar is one of the owner of the brand name

“Bintex” out of the other family members. It is also submitted by the 

appellant that Shri. Rajesh Kumar Harshdrai Punatar is a partner in M/s.

Abhay Industries from 01.04.2001 onwards. In this fact, we are of the view

that the appellant firm using the brand name of “Bintex” for which the

appellant firm partner Shri Rajesh Harshdrai Punatar is one of the owner of

the brand name “Bintex”, the appellant firm is eligible for exemption under

Notification No. 8/2003-CE dated 01.03.2003. We find that this Tribunal in

various judgments cited by the appellant held that if brand is owned by any

of the member or jointly by the family, any member of the family if use the

said brand, it cannot be said that assessee is using the brand name of other

person. The present case is on much better footing for the reason that the

appellant‟s partner Shri Rajesh Harshdrai Punatar himself is one of the

owner of the brand “Bintex” as per the Trade Mark Registration, therefore,

there is no doubt that the brand name cannot be said to be belonging to any

other person. Consequently, the appellant is eligible for exemption

notification. Since the demand against the main appellant is not sustainable

in view of the above discussion and finding, the penalty on the partner also

will not sustain. Moreover, since the penalty on partnership firm was

imposed, a separate penalty on the partner cannot be imposed as held by

the Hon‟ble Gujarat High Court in the case of PRAVIN N. SHAH & JAY

PRAKASH MOTWANI (supra).

In view of our above observation, the impugned order is not

sustainable hence the same is set aside. Appeals are allowed with

consequential relief, if any, in accordance with law.

(Pronounced in the open court) On 05.01.2023)

(RAMESH NAIR)

MEMBER (JUDICIAL)

(RAJU)

MEMBER (TECHNICAL)