Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  The GSTN has issued an Advisory dated 21.04.2026 about the introduction of an Offline Tool for the Invoice Management System (IMS)  *  CBIC extends due dates for filing of FORM GSTR 3B  for the month of April 2026 *  Interest cannot be imposed in adjudication order, if not demanded/quantified in show cause notice : Allahabad HC *  Wheelchairs with toileting facility eligible for exemption: CESTAT affirms customs duty exemption to importer *  Industries urge GST council to allow inverted duty refunds on input services *  Tamil Nadu GST dept introduced virtual hearing facility for GST appeals under under section 107 of the TNGST act: detailed guidelines  *  CIC urges authorities to implement GST evasion complaint tracking system *  Even if the assessee opts "NO" for personal hearing in form DRC-06 ,The mandatory requirement under section 75(4) to grant opportunity of hearing cannot be waived:Gujarat High Court  *  Glufosinate imports curbs imposed by govt *  Government extends Re-import period for exported cut & polished diamonds *  CIC flags lack of tracking system for tax evasion complaints,urges GST authorities to improve transparency *  No Custodial Interrogation needed in GST fraud case based on documentary evidence already in Department's Possession : Chattisgarh HC *  Orders under section cannot be sustained if passed without considering the taxpayer's objections and without granting a personal hearing:Gujarat High Court *  Mere cancellation of supplier's registration cannot,by itself,justify denial of ITC or cancellation of the recipient's registration:Bombay High Court *  High Court sets aside GST notice citing factual errors and natural justice violations *  Provisional Bank Attachment under Section. 110 of Customs Act Unsustainable Beyond Statutory period without Extension order: Bombay HC orders to defreeze accounts *  Post Clearance MRP Alteration by Distributor Does not attract Differential Customs Duty: CESTAT *  DGFT Expands scope of 'Screws' classification under RoDTEP Scheme  *  E-way bills surze to all time high of 140.6 million in March *  GST Exemption Allowed on Pure Labour Services for Standalone Houses: AAR  *  GST Payable Only on Margin in Second-Hand Car Sales, Subject to Strict Conditions and No ITC Claim: AAR *  DGFT rolls out procedure for allocation of calcined coke *  GST portal update : Pre-deposit amount now editable in Appeals *  J&K HC declared TMT scrap a 'Specified Good' eligibile for GST refunds under Support Scheme  *  Pigmy agents are employees of banks; no GST can be levied on commission  paid to them : Karnataka HC *  DGFT Revises HS Code Description for Screws Under RoDTEP *  GST Registration Cancellation Invalid Without Proper Service of Notice: Allahabad High Court. *  Bengaluru CGST | GST Backlog Appeals Deadline Fixed at June 30, 2026 *  No Time Bar on Refund of Service Tax for Services Not Rendered: CESTAT  Remands Indiabulls Case for Unjust Enrichment Check. *  Supreme Court Holds Renewable Energy Incentive Must Benefit Generators, Not Be Adjusted in Tariff
Subject News *   Delhi HC Quashes Order, Says Reminder Cannot Validate Improperly Served GST SCN *  KARNATAKA HIGH COURT REMANDS GST SHORTFALL MATTER DUE TO ABSENCE OF PERSONAL HEARING   *  CESTAT cancels confiscation and penalties on imported computer cabinet cases: Custom duty restricted to 111 surplus units *  Deposit of tax during search or investigation cannot be treated as 'Voluntary Payment' : Bombay High Court *  Section 76 of the CGST cannot be invoked where the tax has already been duly deposited, even if through another registration of the same entity: Madras High Court *  Sec 74 allows use of material regardless of source; illegality or flaws in section 67 search do not vitiate valid adjudication: HC *  Inter-State transfer of ITC on Amalgamation permissible as given under section 18(3) read with rule 41 of the CGST rules, 2017: Gujarat High Court *  HC: No GST on commisson paid to Pigmy Agents *  IGST refund denial on illegible bill of lading invalid absent chance to furnish docs; merit reconsideration in appeals directed: HC *  ITC is not admissible on GST paid on leasehold rights of land used fpr setting up an air seperation plant: AAAR,Tamil Nadu *  GST: No penalty under Section 74 after voluntary ITC reversal due to non-existent supplier : High Court *  TN AAAR denies GST ITC on Land Lease under Sec. 17(5)(d) for setting up plant and machinery *  GST proceedings quashed as notices sent to old address, despite updated address in registration *  Importer Can’t Be Penalised for Alleged IGCR Procedural Lapses Without Evidence of Departmental Error: CESTAT *  Structured Healthcare Training Not ‘Charitable Activity’, 18% GST Payable: AAR  *  CESTAT As The Appellate Authority For Central Sales Tax Disputes: A Paradigm Shift Under Finance Act, 2023 *   Rs. 25K Cost Imposed On SGST Joint Commissioner for Attaching Bank  Accounts Without Forming Mandatory “Opinion”: Bombay HC *   Ex-Parte GST Order Without Hearing Violates Natural Justice: Karnataka  High Court Quashes Adjudication and Bank Attachment.  *   Retrospective GST Cancellation Can’t Invalidate Genuine Transactions:  Jaipur Commissioner (Appeals) Quashes Rs. 95,670 ITC Demand. *   GST Pre-Deposit Non-Compliance: Allahabad High Court Allows Appeal  Subject to Rs. 30 Lakh Balance Deposit, Recognises Offline Filing. *  Documentary Nature of Evidence: Allahabad High Court Grants Bail in Rs. 32.66 Crore Fake ITC Fraud Case *  Supreme Court Flags Systemic Bias in Army’s Permanent Commission Process for Women Officers *  Re-Determination of Land Compensation Can Be Based on Appellate Court Awards, Clarifies Scope of S. 28-A: Supreme Court. *  Supreme Court Imposes Rs. 5 Lakh Costs On Rent Authority Officer For Acting Beyond Jurisdiction. *  DGGI Meerut | Court Denies Bail to Accused in Claiming Fake ITC And Export Refunds *  Denial of GST Rate Revision Benefit to Contractor Violates Article 14: Rajasthan HC *  GST Registration Cancellation for Non-Filing of Returns: Gauhati High Court Directs Restoration on Compliance. *   Supreme Court Quashes FEMA Adjudication Orders, Revives Proceedings at  Show Cause Stage. *   Higher Rank, Harsher Punishment Justified: Supreme Court Restores Dismissal  of Bank Manager in Misappropriation Case. *   Limitation for Export Refund to Be Counted from Foreign Exchange Realisation,  Not From Export Invoices Issuance: CESTAT  

Comments

Print   |    |  Comment

PJ/Case Laws/2010-11/1058

Availability of SSI exemption

Case: Commissioner of C. Ex., Delhi v/s ACE Auto Comp. Ltd.
 
Citation: 2011 (263) ELT 3 (S.C)
 
Issue:- Whether SSI exemption is available under Notification No. 1/93- C.E or 16/97- C.E in case of use of brand name of other person in the name of our product?
 
Brief Facts: - Respondent-assessee was a small scale industrial unit (SSI) engaged in the manufacture of clutch plates, clutch cover assemblies and pressure plates. They were using the symbol and Logo “TATA” along with their own Brand Name “ACE” on cover assembly manufactured for TATA 310 vehicle. Respondent had filed declarations claiming benefit of SSI Notification No. 1/93 and 16/97. After a raid of their premises, show cause notice was issued for demanding duty wand for levying penalty for clearing branded goods of another person.
 
The Adjudicating Authority confirmed the duty and imposed penalty and observed that the TATA brand name pre-fixed with the logo of the appellant would catch the eye of the buyer first as it is a well known and established brand name. That there was no necessity to actually sell the product to TATA companies to establish the connection between the product and the brand name owner. Benefit of exemption couldn’t be extended to the products of the respondent.
 
In appeal, the Commissioner (Appeal) held that the two conflicting brand names are TATA and TATA ACE and the sole reason for this usage of the name TATA is that it stands earmarked for a particular vehicle. They are also manufacturing auto parts for use in the other vehicles of different manufacturers for which they do not use this logo. Thus, it was held that TATA ACE brand name is different from the popular name TATA.
 
Against this order, Revenue filed appeal before the Tribunal. The Tribunal dismissed the appeal by holding that it is not Revenue’s case that TATA ACE is a brand name of another person. It was held that usage of the name Tata in the brand name was with a view to indicate that the part is for a particular vehicle manufactured by Tata.  
 
Hence, Revenue has filed present appeal before the Apex Court.
 
Appellant’s Contentions:- Revenue submitted that in the light of the judgment given in Commissioner of Central Excise, Calcutta v/s Emkay Investments (P) Ltd & Anr [2004-TIOL-97-SC-CX-LB] and Commissioner of Central Excise, Chandigarh-I v/s Mahaan Dairies [2004-TIOL-52-SC-CX], it is settled that whenever the assessee affixes the brand name of another person on its goods with the intention to indicate some connection between the goods and the said brand name, the assessee is barred from availing the benefit of the Notifications. In view of the fact that indubitably the brand name TATA which did not belong to the assessee but to another identified company, had been affixed by the assessee on their product, although in conjunction with the word ACE the Tribunal’s conclusion that there was no material to prove that the brand name TATA ACE belonged to another person, is clearly a misconstruction of Para 4 of the SSI Notification and therefore the impugned order is to be set aside.
 
Amicus Curiae’s Submissions:- The conclusion reached by the Tribunal is correct and the finding of fact should be affirmed as it has not been specifically challenged by the Revenue. It was submitted that the prerequisite for invoking para 4 of Notification No. 1/93 is not satisfied as the revenue has not been able to establish that the brand name ”TATA ACE” belongs to some other person. The burden to prove the same is on the Revenue. Reliance was placed on Commissioner of Trade Tax, UP & Anr v/s Kajaria Ceramics Ltd [2005-TIOL-95-SC-CT].
 
Relying upon judgment in Pappu Sweets and Biscuits & Anr v/s Commissioner of Trade Tax, UP, Lucknow [(1998) 7 SCC 228] it was submitted that Para 4 of said Notification being an exclusionary clause, the same has to be strictly construed. Since both the Tribunal as well as the Commissioner (Appeals) have concluded that the use of the word TATA was merely to denote that the product was meant for use in a particular vehicle, the affixation of TATA was merely descriptive of the assessee’s product and not as if the goods had been marketed with another brand name. Reliance was placed on Nirlex Spares (P) Ltd v/s Commissioner of Central Excise [2008-TIOL-05-SC-CX]; Commissioner of Central Excise, Jamshedpur v/s Superex Industries, Bihar [2004-TIOL-100-SC-CX] andEmkay Investments (P) Ltd it was submitted that mere use of the word TATA should not disentitle the assessee from the benefit of the 2 Notifications.
 
It was submitted that Revenue’s argument that use of the word TATA would confuse the buyers is misplaced in as much as no such test was envisaged under the Notification. Moreover, no such allegations are made in the Show cause notice. In the light of decisions in Commissioner of Customs, Mumbai v/s Toyo Engineering India Ltd [2006-TIOL-111-SC-CUS] and Commissioner of Central Excise, Nagpur v/s Ballarpur Industries Ltd [2007-TIOL-153-SC-CX], it is trite that the foundation of the Revenue’s case is laid in the show cause notice, and the same must be confined to the allegations contained therein.
 
Reasoning of the Judgment:- The Apex Court perused the provisions of the Notification Nos. 1/93-C.E and 16/97-C.E and the definition of Brand name given therein. It was observed that both the Notifications contain the same definition of brand name and also provide that the exemption contained therein shall not be available to goods bearing the brand name of another person.
 
It was held that it is manifest from a bare reading of Clause 4 of the Notification read with Explanation IX that it clearly debars an assessee from the benefit of exemption under the notification, if he uses another person’s brandname or trade name with the intention of indicating a connection between the assessee’s goods to those industries which otherwise do not have the advantage of brand or trade name. Reliance was placed on Kohinoor Elastics (P) Ltd v/s Commissioner of Central Excise, Indore [2005-TIOL-120-SC-CX] and on Commissioner of Central Excise, Trichy v/s Grasim Industries Ltd [2005-TIOL-69-SC-CX-LB].
 
In light of the explanations and cited case laws, the Apex court came to the conclusion that in order to avail the benefit of exemption notification the assessee must establish that his product was not associated with some other person. Differently put, if it is shown that the assessee has affixed the brand name of another person on his goods with intention of indicating a connection between the assessee’s goods and the goods of another person, using such name or mark, then the assessee is able to satisfy the Adjudicating Authority that there was no such intention, or that the user of the brand name was entirely fortuitous, it would be entitled to the benefit of the exemption.
 
In respondent’s case, the Apex Court noted that the brand name TATA did not belong to the assessee. By using the said brand name, the assessee had not only intended to indicate a connection between the goods manufactured by them and a Tata Company; but also the quality of their product as that of a product of Tata company as they were supplying their goods to the said company. Thus, the bar created in Clause 4 read with Explanation IX of the Notification was clearly attracted in respondent’s case. Thus, respondent-assessee was disentitled from the benefit of the exemption Notifications under consideration. The decision of the Tribunal was clearly erroneous and is therefore set aside.
 
Further the Apex court contended that in this case the brand name “TATA” did not belong to the assessee and it was used intentionally to indicate a connection between the assessee and Tata Company. Hence the appeal was allowed and the impugned order was set aside. Order passed by the Adjudicating Authority restored.
 
Decision:- Appeal allowed. 

************

 
Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com