COMMISSIONER OF CENTRAL EXCISE RAIPUR Vs. HIRA CEMENT
LAWS(SC)-2006-2-90
SUPREME COURT OF INDIA
Decided on February 02,2006

COMMNR. OF CENTRAL EXCISE, RAIPUR Appellant
VERSUS
HIRA CEMENT Respondents





Cited Judgements :-

DIRECTOR OF INCOME TAX VS. RAUNAQ EDUCATION FOUNDATION [LAWS(DLH)-2007-4-159] [REFERRED TO]
COCHIN CEMENTS LTD VS. STATE OF KERALA [LAWS(KER)-2008-6-56] [REFERRED TO]
ASHOK LENKA VS. RISHI DIKSHIT [LAWS(SC)-2006-4-46] [REFERRED TO]
COMMISSIONER OF INCOME TAX VS. SIEMENS AKTIONGESELLSCHAFT [LAWS(BOM)-2008-11-118] [REFERRED TO]
COMMR OF CUS. & C. EXCISE VS. BAZPUR COOPERATIVE SUGAR FACTORY LTD. [LAWS(UTN)-2014-8-70] [REFERRED TO]
ALLIANCE GRAIN PRODUCTS PVT. LTD. VS. DIRECTOR OF INDUSTRIES AND COMMERCE [LAWS(KER)-2015-8-169] [REFERRED TO]
P R PRABHAKAR VS. COMMISSIONER OF INCOME TAX COIMBATORE [LAWS(SC)-2006-7-10] [REFERRED TO]
O N G C LTD VS. COMMNR OF CUSTOMS [LAWS(SC)-2006-8-101] [REFERRED TO]
A P STEEL RE ROLLING MILL LTD VS. STATE OF KERALA [LAWS(SC)-2006-12-56] [REFERRED TO]
STATE OF ORISSA VS. TATA SPONGE IRON LTD [LAWS(SC)-2007-9-63] [REFERRED TO]
C K GANGADHARAN VS. COMMISSIONER OF INCOME TAX [LAWS(SC)-2008-7-63] [REFERRED TO]
COMMISSIONER CENTRAL EXCISE DELHI VS. ACE AUTO COMP LTD [LAWS(SC)-2010-12-38] [REFERRED TO]
A.J. BANTEX (P) LTD. VS. COLLECTOR OF C. EX., BANGALORE [LAWS(CE)-2008-4-112] [REFERRED TO]
DELHI BUREAU OF TEXT BOOKS VS. DIRECTOR OF INCOME TAX (E) [LAWS(DLH)-2017-5-79] [REFERRED TO]


JUDGEMENT

S.B.SINHA, J. - (1.)THIS appeal under Section 35-L(b) of the Central Excise Act, 1944 (for short "the Act") is directed against a final judgment and order dated 22-1-2004 passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi in Appeal No. 145/2004-B whereby and whereunder the appeal preferred by the Appellant herein was dismissed.
(2.)THE basic fact of the matter is not in dispute. THE assessee is one M/s. Hira Cement. It carries on business of manufacture of cement in the town of Raipur. It is a small-scale industry (SSI) being a proprietary concern of one Shri Suresh Agrawal. Another industry, known as M/s. Hira Industries Limited, is also a manufacturer of cement having a factory in the town of Jagdalpur which is situated at a distance of about 300 kms. from Raipur. Hira Industries Limited was incorporated and registered under the Companies Act on or about 20th October, 1983 whereas the Respondent herein was set up in the year 1988. Hira Industries Limited is not a SSI unit. THE unit of the Respondent was earlier known as Bajrang Bali Cement whereas that of Hira Industries Limited was known as Jai Bajrang Cement Ltd. THE capacity of production of the Respondent's cement industry is about 60 tonnes per day whereas that of Hira Industries Limited is 150 tonnes per day.
As a SSI unit, the Respondent herein claimed exemption from payment of excise duty in terms of a notification dated 28-2-1993. The said notification was issued under Section 5-A of the Act; paragraph 4 whereof reads as under:

"4. The exemption contained in this notification shall not apply to the specified goods where a manufacturer affixes 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: Provided that nothing contained in this paragraph shall be applicable to the specified goods which are component parts of any machinery or equipment or appliances and cleared from a factory for use as original equipment in the manufacture of the said machinery or equipment or appliances and the procedure set up out in Chapter X of the said Rules is followed: Provided further that nothing contained in this paragraph shall be applicable to the specified goods where a manufacturer affixes the specified goods with a brand name or trade name (registered or not) of the Khadi and Village Industries Commission or of the State Khadi and Village Industries Board."

"Brand name" or "trade name" has been defined in Explanation IX of the said notification in the following terms :

"Brand name" or "trade name" shall mean a brand name or trade name, whether registered or not, that is to say a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person."

(3.)THE Respondent herein states :
"Hira Industries Ltd. is thus a Limited company run by Shri B. L. Agrawal and other Directors whereas Hira Cement is a proprietorship concern owned by Shri Suresh Agrawal. Shri Suresh is the nephew of Shri B. L. Agrawal and that was the main reason for which both the units were held to be related parties. However, there is no other nexus or relation between Hira Industries Ltd. and Hira Cement. Shri B .L. Agrawal and Shri Suresh Agrawal are not even falls within the ambit of definition of Relatives as defined under Section 6 of the Companies Act, read with Schedule 1A of the Act. THE Hira Industries Ltd. has hired a portion of premises of Hira Cement for maintaining its Registered Office at Raipur and a small godown for keeping its goods. Hira Industries Ltd. used to purchase Cement from Hira Cement and for catering to the needs of its Raipur customers Hira Industries Ltd. used to keep those goods in the said godown. Accordingly, the Registered Office and Telephone Numbers of Hira Industries Ltd. and Office Address and Telephone Numbers of Hira Cement happened to be the same. Both the entities were operating independently."

The Appellant contends that the Respondent, herein was not entitled to claim the benefit of SSI exemption on the ground that the same would not apply to the specified goods bearing a brand name of another person, in view of the fact that the Respondent has been using the brand name of said Hira Industries Limited.



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