Seal Jet India Pvt. Ltd. vs Commissioner of Central Excise

At the request of the Counsel these appeals are being disposed of at the stage of admission. These seven appeals filed u/s 35G of the Central Excise Act, 1944 (the Act) challenges a common order dated 9 April 2013 disposing of the seven appeals before the Tribunal from the orders dated 31 March 2004 passed by the Commissioner of Central Excise, Pune and orders dated 13 January 2006 and 31 May 2006 of Commissioner of Central Excise (Appeals).

Although numerous questions of Jaw have been raised in the appeal for our consideration, the basic grievance of the petitioner is that the Tribunal has passed the impugned order without considering the evidence in support of the appellant''s case inspite of the same being pointed out to the Tribunal.

The appellant is carrying on business of manufacturing of Hydraulic seals Pneumatic seals and "O" rings of rubbers and plastics falling under Chapter 84 of the First Schedule to Central Excise Tariff Act, 1985.

During the period July 1997 to November 2004 the appellant was registered as an SSI unit. The appellant was also availing the benefit of SSI excise notification in respect of Seals manufactured and cleared under the brand name "SEAL JET".

As far as back in 1996 the Central Excise Department has raised a query of the appellant whether it was using the brand name of foreign collaborator. The appellant in response by its letter dated 2 April 1996 informed the Excise Department that they are not using the brand name of their foreign collaborator whose brand name is "Merkel Economos".

Thereafter, periodical show cause notices covering disputed period July 1997 to Nov. 2004 seeking to deny the benefit of SSI Notification on the ground that it was using brand name belonging to a foreign company. In all ten show cause notices were issued to the petitioner. Three of them covering the period July 1997 to September 2003 were adjudicated by a common order of the Commissioner of Central Excise while seven notices covering the period October 2003 to November 2004 were issued by the Assistant Commissioner of Central Excise which were adjudicated by six orders of the Assistant Commissioner of Central Excise and confirmed in first appeal by the Commissioner of Central Excise (Appeals).

Being aggrieved the appellant had carried all the seven orders of the adjudicating authorities in appeal to the Tribunal. By the impugned order dated 9 April 2013 the Tribunal dismissed the appeals. The grievance of the appellant is that the impugned order is a non-speaking order. The impugned order does not deal with the issue of limitation urged nor does it deal with the evidence in the form of the classificatory letters dated 13 December 2000, 16 September 2002 and 26 March 2004 issued by the foreign collaborator to the effect that the brand name "Seal Jet" does not belong to them. The Revenue before us supports the impugned order.

We have considered the rival submissions. We find that the impugned order dated 9 April 2013 of the Tribunal has not considered the appellant''s contention that show cause notices covering the period July 1997 to August 2002 are barred by limitation or that there was no justification in the present facts to impose any penalty upon the appellant. The impugned order dated 9 April 2013 is vitiated to the extent it does not consider and deal with the above submissions of the appellant. On merits also the impugned order dated 9 April 2013 of the Tribunal does not deal with/consider the submissions of the appellant based on letters dated 16 September 2002 and 26 March 2004 received from foreign collaborator stating that the brand name "Seal Jet" is not their band name. This evidence of the appellant was also not considered in the impugned order dated 9 April 2013 of the Tribunal. The Tribunal is required as a final fact finding authority to determine on the basis of evidence before it whether the brand name "Seal Jet" used by appellant does belong to a foreign company as alleged by the Revenue. There is no finding on the above issue. The impugned order has proceeded on the basis that "Seal Jet" is a brand name belonging to a foreign company and dealt with a legal issue that the registration of a brand name would only taken effect for the purpose of excise duty from the date of the registration of the Mark and would not relate back to the date of application for registration as otherwise available under the Trade Marks Act. However, before deciding the aforesaid legal position it was required of the Tribunal to first determine whether or not brand name "Seal Jet" was belonging of a foreign company. In view of the above without considering the proposed questions of law raised by the appellant at this stage, we set aside the impugned order of the Tribunal and remand the same to it to pass a fresh order after considering the issue of limitation, penalty and whether the brand name "Seal Jet" belongs to a foreign company. All the contentions are left open. All these seven appeals are disposed of in the above terms. No order as to costs.