S.S. Sekhon, Member (T)

1. The appellants are M/s. Meyer Health Care Pvt. Ltd. (hereinafter referred to as MHCPL), a manufacturer of P or P medicines availing the benefit of Notfn. Nos. 16/97 and 5/98. The officers visited their premises and noticed that they were engaged in the manufacture of products Fevril Syrup and Calcimax Suspension and after making enquiries learnt that the appellants had not taken out a registration but had only filed a declaration based on the value of the excisable goods. It was also noted that the brand names Fevru" and Calcimax were owned by M/s. Meyer Organics Pvt. Ltd. (hereinafter referred to as MOPL); it prima facie appeared that MGCPL were not eligible for the exemption of SSI notifications, as they were using the brand names of another person, they were issued a Show Cause Notice to deny them the benefit of the Fevril syrup and Calcimax. The Commissioner confirmed the demand of duty by denying them the benefit and ordered confiscation of seized goods and imposed penalties on MHCPL, its General Manager, M/s. MOPL and ordered interest under Section 11AB on MHCPL. The present appeals are filed against this other.

2. We have heard both sides and considered the submissions made and find:--

(a) In respect of Fevril Syrup, there is a clear admission in the show cause notice itself that the trade mark has been assigned to the appellant, therefore the question of denying them the benefit of SSI exemption does not arise. The following decisions have been relied by the Ld. C.A. for the appellants:--

(i) CCE v. ESBI Transmission Pvt. Ltd., : 1997 (91) ELT 292

(ii) Opus India v. Collector, 1993 (43) ECC 51 (T) : : 1992 (62) ELT 447

(iii) CCE v. Vishara Trading & Inustmt, 1996 (87) ELT 499

(iv) CCE v. Bygen Industry, : 1999 (107) ELT 213

(v) CCE v. Gopal Soap Inds., : 1999 (111) ELT 876

The issue of agreement arrived at and for determining a consideration confirming retrospective assignments made, will not cause an embargo and deny the benefit of SSI exemption notifications as regards the use of assigned brand names is a settled position in law. Therefore, we do not find any case for denying the benefit of SSI exemption as regards clearances of goods bearing the brand Fevril syrups.

(b) As regards the question of recovery of duty on goods bearing the brand Calcimax suspension, it was submitted by the Ld. C.A. for the appellants that there is no doubt that MOPL and MHCPL were separate entities, even if it is held that they are related, they have discharged and paid the duties at the values of the sale price of the alleged related person i.e. MOPL. Therefore there could not be any further demands of duties required to be made. These demands of duties have arisen due to considering the turnover of goods bearing brand Fevril syrups. It was submitted before us that if this turnover of syrup permissible under SSI exemption notifications is granted and not considered, then there is no further duty liabilities that would arise on the appellants.

(c) When we find that due to the assignment deeds, there cannot be a denial of notification, on goods bearing brand Fevril syrup, we would consider remitting the matter back to the original authority for re-determining the duties, if any, which are required to be paid on Calcimax suspension as per law, after considering duties, if any, already paid by the appellant.

(d) Since we are remanding the matter back to the original authority, we would set aside the penalties imposed in all these appeals and direct that the question of penalty could be considered, only if any duties remain to be paid after determination by the original authority in the remand proceedings.

3. In view of our findings, the order are set aside and appeals allowed in above terms.