Full Judgment
2. The appellant was engaged in the manufacture of flexible tubing. It was availing, at the relevant time, the exemption under Notification 1/93. This Notification was not available (as provided in Para 4) to goods on which the manufacturer affixes the brand or trade name of another person who is not eligible for the grant of exemption.
Following a visit to the appellant's factory the departmental officers came to the conclusion that the appellant was using the brand name "Flexican" by affixing it on the goods in question. The department's inquiry showed that this brand name was registered in the name of M/s.
Zaverchand Gaekwad Ltd. Notice was, therefore, issued proposing recovery of duty, at the hearing the assessee contended that M/s.
Zaverchand Gaekwad Ltd. itself a small scale steel industrial unit. The certificate was valid till 28th April, 1995. This unit otherwise satisfied the requirements relating to value of clearances etc.
contained in the Notification. It was, therefore, entitled to the benefit of Notification.
3. The Commissioner did not accept this contention. He said that M/s.
Zaverchand Gaekwad had been closed from 1st April, 1993 and was not manufacturing or clearing any goods. Therefore, he concluded, it was not eligible for the notification. Hence the appellant was not eligible for the benefit of the notification in respect of the goods on it.
Hence this appeal.
4. The Advocate for the appellant draws a distinction between the eligibility to the benefit of the notification and its actually being availed of. He contends that the fact that M/s. Zaverchand Gaekwad did not manufacture or clear any goods from 1-4-1993 did not render it ineligible for the benefit of the notification. So long as it satisfied the requirements provided in the Notification, it was eligible for the benefit of the notification. The fact that it did not avail of this benefit, he says, by actually clearing goods, does not by itself disentitle it to the benefit of the Notification. We are in agreement with this reasoning. The view of the Commissioner and reiterated by the departmental representatives is that since M/s. Zaverchand Gaekwad was not availing of the Notification the appellant was not entitled to its brand name. The fact that Zaverchand Gaekwad Ltd. did not avail of the notification does not mean that it was not eligible for the notification. It satisfied the criteria with regard to being an SSI unit and value of clearances. If it chose to avail of the notification, it could not have been denied it. The Commissioner has lost sight of the distinction between eligibility to the notification, and actually availing of it. M/s. Zaverchand Gaekwad was the owner of the brand name, and or eligible for the benefit of Notification 175/86. The appellant therefore would not be adversely affected by the condition in para 4 of the notification.