JUDGMENT

Arijit Pasayat, J. — Challenge in this appeal is to the decision of the Central Excise and Gold Control Appellate Tribunal, New Delhi (in short the Tribunal) holding that the authorities had rightly denied small scale exemption to Reiz Electrocontrols Pvt. Ltd. (in short the REPL) and Reiz Enterprises (in short the RE). It was further held that the demands of duty from them and imposition of penalty as well as interest levied under Central Excise Act, 1944 (in short the Act) and Central Excise Rules, 1944 (in short the Rules) do not suffer from any infirmity. However, the case was remanded to the jurisdictional Commissioner for re-computing the duty demands and re-determining penalty. However, in the light of observations made, penalties imposed on Shri Atul Agarwal and Sh. Siddarth Agarwal under Rule 209A were set aside.

2. The back ground facts in a nutshell are as follows:

M/s RE is a proprietary concern of Shri Atul Agarwal and is engaged in the manufacture of Electronic Fan Regulators, Dimmers and Remote Control Switches under the brand name REIZ since 1988. In the year 1993, M/s REPL was constituted with Shri Atul Agarwal and his two brothers Shri Siddarth Agarwal and Shri Ravindra Agarwal as its Directors. M/s REPL was engaged in the manufacture of Electronic transformers. Both the units manufacture their goods

0nder a common brand name of REIZ. The Commissioner, Central Excise-I, New Delhi by his order dated 31.10.2001 held that since the brand name REIZ belonged to M/s RE till its transfer to REPL in 2000, the Electronic transformers manufactured under brand name RETZ by REPL till the transfer were ineligible for small scale exemption, inasmuch as under the Notification no. 1/93 a manufacturer affixing the brand name of another person was ineligible for the exemption. Similarly, it was held that M/s RE became ine ligible for exemption once the brand name REIZ was transferred on 30.3.2000 to REPL. Appeals were preferred before the Tribunal questioning duty, penalty and interest levied. Tribunal disposed of the appeals as aforenoted. Tribunal noted the position as follows:

"It is a specific condition under Notification No. 1/93 that the goods manufactured under the brand name of another person is not eligible for exemption under the notification. Investigations have established that Shri Atul Agarwal on behalf of M/s. RE had applied on 12.1.1993 for registration of brand name of REIZ in respect of goods including electronic transformer. This registration application was allowed in his favour in 2000. It is well settled that registration of trade mark/brand name once granted relates back to the date of application. Thus, in respect of electronic transformer also Mr. Atul Agarwal, proprietor of RE became owner of the brand name REIZ w.e.f 1993. Therefore, the electronic transformers manufactured by M/s. REPL with the brand name REIZ impugned in the present proceeding being manufactured subsequent to 1993 became ineligible for small exemption on account of the use of brand name REIZ which belonged to another person (RE). On account of the subsequent transfer of the brand name of REPL, RE has also become ineligible for exemption in respect of the goods produced under that brand name subsequent to the transfer."

3. Stand of the appellants before the Tribunal was that M/s RE never manufactured electronic transformer and therefore, in respect of that item, the brand name REIZ belonged to M/s REPL. It was also submitted that REPL had applied for registration of that brand name in their favour for electronic transformer in 1995. In these circumstances, it has to be held that electronic transformers manufactured by the REPL were not manufactured under the brand name of another person.

4. The demands in the present case were raised under extended period permitted in the proviso 11A of the Act, on the ground that, the non-levy in the result of suppression of facts with intention to evade payment of duty.