Judgment:
1. In this appeal filed by M/s Unisys, the matter relates to the eligibility of the appellants to the benefit of small scale exemption under Notification No. 1/93 dated 28.2.1993. The appellants were purchasing certain parts from the customers to whom the final products which were referred to as MDF Cable Assembly were being supplied. The benefit of small scale exemption was disallowed by the Commissioner of Central Excise on the ground that the cable assembly was bearing the brand name of M/s Fujitsu India Telecom Ltd., Mohali. M/s Fujitsu were using the cable assembly in the organisation of Digital Switching System. The Commissioner of Central Excise also held that the extended period of limitation was invokable in the facts and circumstances of the case.
2. Shri Ashok Dhingra, consultant, appearing for the appellants, submitted that their case was fully covered by the Larger Bench decision of the Tribunal in the case of M/s Prakash Industries vs CCE, Bhubaneshwar, 2000 (119) ELT 30 (T-LB). He also submitted that the situation for decision in this case is also similar to the one discussed in the Board's Circular No. 71/71/94-CX dated 27th October, 1994. The adjudicating authority had noted their submission in this regard but had not discussed this Board's Circular in arriving at the decision. He submits that the classification matter has already been settled and the assessee was eligible for the benefit of small scale exemption which has been denied to them. He submits that all the facts are on record and the Tribunal should set aside the impugned order-in-original. In reply, Shri M.P. Singh, DR, submits that the Larger Bench decision is not applicable and that the marks 'FUJITSU' have been written in a stylish manner and as this insignia did not belong to the appellants, the benefit of small scale exemption had been rightly denied. As regards the Board's Circular it was his submission that although there is no specific mention in the discussion part, the spirit of the Circular has been take note of and in arriving at the decision, the Circular has been fully discussed.
3. After hearing both the sides and on going through the facts on record, we find that the learned Commissioner of Central Excise has taken note of the submissions of the appellants with regard to the Board's Circular No. 71/71/94-CX dated 27th October, 1994 in para 14(3)(vii) of his order while summarising the submissions made by the assessee. Both the sides agreed that in the discussion part, there is no specific reference to this Board's Circular. The learned counsel has also referred to the Tribunal's Larger Bench decision which, of course, was not available to the adjudicating authority as the decision was rendered on 25.5.2000 while the matter was adjudicated in January, 2000. The learned counsel has submitted that the provisions regarding Chapter X have been also discussed in the case of S.A. Indus. vs CCE, Mumbai, 2000 (121) ELT 393 (T), which has followed the Larger Bench decisions.
4. We consider that the various aspects covered by the Board's Circular and the Larger Bench decision, relied upon by the learned counsel, need to be taken care of and for this purpose, the matter needs to be remanded to the jurisdictional Commissioner of Central Excise who after giving full liberty to the appellants to present their case including with regard to the extended period of limitation, pass speaking appealable order, as per law. At this stage, the learned counsel also referred that all along the Department was aware of the product and the way it was marketed. There was no suppression. This aspect will also be re-examined by the jurisdictional adjudicating authority.
5. With these observations, the impugned order is set aside and the appeal is allowed by way of remand to the jurisdictional Commissioner of Central Excise. Shri Ashok Dhingra, consultant, submits that as the unit is running into difficulties, the matter may be re-adjudicated at an early date. We direct the jurisdictional Commissioner of Central Excise to take up this case for re-adjudication in the light of our above observations at his earliest. The appeal is thus allowed by way of remand.