S. Kalyanam, Member (J)

1. Stay application. Since we propose to remand the appeal on a short point of law, we grant waiver of pre-deposit of duty and penalty pending disposal of the appeal today.

2. Appeal. - This appeal is directed against the order of the Addl. Collector of Central Excise, Bangalore, dated 244-1992. Shri G. Sampath, the learned Counsel for the appellant submitted that the appellants manufacturing aluminium castings intended for housing and covering sought to classify the same under Heading 7601 and claimed the benefit of Notification 180/88, dated 30-5-1988. He further contended that the duty in the present appeal is for the period 1987-88 to 1990-91 and for the said period the total value of the clearances of the appellant was Rs. 1,30,238, Rs. 1.58 lakhs and Rs. 1.10 lakhs respectively and the appellants would be entitled to the benefit of Notification 175/86, dated 1-3-1986. However, the adjudicating authority has denied the benefit of this notification to the appellants on the ground that the appellants have affixed the brand name of NGEF on the coverings. The learned Counsel further submitted that in an identical issue in regard to classification of brand name of NGEF on an identical case came before the Collector of Central Excise, Bangalore, for consideration and in that case the benefit of Notification 175/86 was granted to the party by order of the Collector, dated 26-5-1992/17-6-1992. The learned Counsel therefore submitted that there cannot be discrimination on identical issue on the benefit of Notification on identical circumstances between two similarly placed assessees.

3. Heard Shri R. Subramanian, the learned D.R.

4. We have gone through the records and considered the submissions. We find that co-ordinate authorities viz. the Additional Collector and the Collector would appear to have taken a different view in regard to the identical issue with reference to the manufacturer's eligibility to the benefit of Notification 175/86 on identical case. In the order of the Collector of Central Excise, Bangalore, referred to supra granting benefit of Notification 175/86 to the party therein, the operative portion reads as under :

"Clarification dated 29-10-1987. - The name/logo printed on the metal labels etc. is a brand name/trade name in respect of goods in which such labels are to be affixed, because such name/logo indicates a connection in the course of trade between the goods on which such labels are affixed and the brand name owner. Names printed on such metal labels are not brand name by themselves and so long as these metal labels are not affixed on the goods in the trade of which the name/logo printed on such metal labels etc. served as brand name (within the definition of Explanation VII) they are not hit by the mischief of para 7 of the Notification. Therefore, SSI Units manufacturing metal labels/collapsible tubes/crown corks/PP caps, which bear the brand name or logo of brand name owners, would continue to enjoy the benefit of Notification No. 175/86 C.E. subject to satisfying the conditions of the notification.

Clarification dated 27-11-1987. - In this connection attention is invited to clarifications already given in para 2.1 of Board's letter F. No. 345/35/87 TRU, dated 29th October, 1987. As in the case of collapsible tubes, crown corks, PP caps, metal containers, HOPE bags etc. bearing the branded name of large manufacturers/traders would not be hit by the mischief of aforesaid notification.

[M.F. (D.R.) Letter No. 213/28/87-CX.6, dt. 27-11-1987].

21. As per the above clarification given by the Board, it is evident that if the goods are to be held as branded goods then it should be capable of being sold either by the manufacturer or by the brand name owner as such. For example, if a manufacturer of soaps affixed the brand name/trade name of another person who is not eligible for exemption under Notification 175/86 then the manufacturer would not be entitled for the benefit flowing from N