Per Jyoti Balasundaram : The respondents herein, manufacturers of Hot-Drink Dispensing machines and pre-mix of Coffee/Tea/Soup, are a SSI unit availing exemption in terms of Notification No. 1/93 dated 28.2.93. On noting that the assessee was affixing brand name "Fountain" belonging to one M/s. Fountain Netherlands Holding on their product, the department issued a show cause notice dated 4.1.95 proposing denial of SSI benefit for the period July to December, 1994 and this was followed by 8 periodical show cause notices covering the period upto September 1998 on the same issue. The notices were adjudicated by the Asstt. Commissioner of Central Excise vide order dated 29.9.2000, denying the benefit of SSI exemption and holding that pre-mixes of coffee/tea/soup are excisable and classifiable under CET Sub-headings 2101.10, 2101.20 and 2104.10 respectively. The benefit of modvat credit for the relevant period was also denied and a demand for Rs. 91,92,183/- was confirmed and a penalty of Rs. 10,000/- in respect of each show cause notice, totaling Rs. 90,000/- was imposed. The Commissioner (Appeals) vide his Order-in-Appeal dated 23.2.2001, on appeal filed by the assessee, held that mixing of duty paid instant coffee/tea/soup with duty paid Whitener, Sugar and drinking chocolate to pre-mix coffee/tea/soup does not amount to manufacture and thus not leviable to duty. With regard to Hot Drink Dispenser machines, he held that the process amounts to manufacture and chargeable to duty but he extended the benefit of SSI exemption holding that the goods do not fall under the mischief of the brand name concept provided in the Notification No. 1/93. He accordingly, directed the lower authority to calculate the duty liability on this product. He, further, directed that the benefit of modvat and cum duty price under Section 4 (4) (d) (ii) to be extended to the assessee. Hence this appeal by the Revenue which contends that the benefit of SSI exemption is not available to Hot Drink Dispenser machines, in the light of the decision of the Larger Bench of the Tribunal in the case of M/s. Namtech Systems Ltd. Vs. CCE, 2000 (36) RLT 35 (CEGAT-LB)=RLT (LB-CEGAT)-1334=2000 (115) ELT 238 and that the pre-mixes are processes of manufacture as by pre-mixing of various ingredients, a different commercial commodity comes into existence, which is liable to duty.

2. We have heard both sides. The following 2 issues have been raised by the Revenue in this appeal:-

(i) Whether the use of the brand name "Fountain" belonging to the Foreign Partner of the Respondents, being a non-transferable exclusive right to use in India, granted as per the Agreement, would deny the Respondent the benefit of SSI concessions in terms of the Notfn. No. 1/93 dt. 28.2.93, as amended.

(ii) Whether the process of mere mixing of duty-paid coffee powder/tea powder with duty paid sugar and duty paid whitener to make pre-mix coffee/pre-mix tea and mere mixing of chocolate powder with sugar and skimmed milk to make drinking chocolate, would amount to manufacture in terms of Section 2 (f) of the Central Excise Act, 1944.

3. Our findings are recorded here under:-

Issue No. (1) : According to the ld. SDR, this issue stands answered in favour of the Revenue by the Larger Bench decision in the case of Namtech Systems Ltd. Vs. CCE, New Delhi - 2000 (36) RLT 35 (CEGAT-LB)=RLT (LB-CEGAT)-1334=2000 (115) ELT 238 - wherein it has been held that where a manufacturer affixes the specified goods with the brand name or trade name of a foreign person and or a non manufacturer/trader, the benefit of SSI Notification is not available to the specified goods. However, the above contention has been ably rebutted by the ld. counsel for the respondents by submitting that the facts of the case are distinguishable from the Namtech Systems Limited. In the present case by the agreement dt. 27.4.94 entered between the respondents and Fountain Consumer, Netherlands Holding, Netherlands, the Foreign Company has parti