Judgment:
1. The application is for waiver of deposit of duty of Rs. 12,39,721/- and equivalent penalty.
2. The applicant is engaged in the manufacture of blades for electric fan, guards for such blades. It had claimed the benefit of the exemption contained in notification 9/98 and its successors for the period of three years commencing from 1998-1999. For computing the value of these clearances in terms of the notification, it did not include the cost of these parts cleared to Crompton Greaves Ltd. on the ground that they bore the brand name of that company. Duty had become payable without the exemption in respect of these goods. Notice issue to it alleged that the goods did not bear the brand name of Crompton Greaves ltd. It relied on the definition in the explanation to paragraph 4 of the notification. This says briefly that brand name or trade name refers to a name, mark etc. used to indicate the connection "in the course of trade between the goods and the person using such name or mark". The notice alleged that since the goods were not sold to Crompton Greaves Ltd. in the course of trade because that company utilised them in the manufacture of fans. The Additional Commissioner has confirmed this proposal in his adjudication order. The Commissioner (Appeals) dismissed the appeal before him for failure to deposit the entire amount.
3. We find some merit in the contention of the counsel for the applicant that the basis for denial of the exception on this ground is incorrect, for the reason that whenever the goods are sold or purchased by another, that transaction is in the course of trade, after all nothing other than sale and purchase of goods. Prima facie therefore, this ground is difficult to sustain. At a same time however, on examination of the goods in question, we find that the fan blade does not in fact contain any brand name at all. The brand name is affixed on the fan guard. The fact that the guard and the blade are bought and sold together does not, in view, have any significance. They are not even fitted together or can be used together. On the contrary, if they are fitted together, neither the blade nor the guard can be put to use; the blade has to be screwed on the root of the fan and has to be in a position to protect without being attached to anything else. The extent to which the adjudicating authority relied on this fact has been verified.
4. Having regard to these facts, we think a deposit of Rs. 4 lakhs by the applicant is appropriate. Accordingly we order that on such deposit being made by the applicant within eight weeks from the receipt of this order, and evidence produced to the Commissioner (Appeals), his order is set aside, the matter remanded to him for disposal of the appeal, in accordance with law. On failure to do so, the appeal before us shall stand dismissed.