Per S.S. Sekhon:

Appellants are a partnership firm engaged in the manufacture of "Fruity Sweets" falling under Ch.H 1704.90 of the schedule to the CETA, 1985. They filed a Classification List effective 1st April 94 classifying "Fruity Sweets" under Ch.H 1704.90 claiming exemption under Notification No. 1/93 dt. 28.02.93 as amended under Notification No. 59/94 dt. 1/3/94 which was approved by the jurisdictional Assistant Commissioner. On 28.03.95 the Supdt., Anti evasion - IV, Central Excise , Pune visited the appellants factory at Panchagani and recorded the statement of Shri Mustaq Jainuddin Sheikh, Accounts officer of the appellant firm manufacture of "Fruity Sweets" by the appellants. He deposed the manufacturing process of "Fruity Sweets" sold under the brand name of the Mapro Foods, a brand name not owned by M/s. Vora Products but owned by M/s. Mapro Foods, Mahabaleshwar. Fruity Sweets valued at Rs. 3,02,598/- lying in the factory, duly accounted in the RG1, were seized on 29.03.95 on the grounds that "Fruity Sweets" bore brand name of "Mapro, Mahabaleshwar" which was not owned or registered by appellants but was being used despite being owned or registered by M/s. Mapro Foods, Mahableshwar. One of the partners of the appellants deposed that Vora products manufactured only "Fruity Sweets" falling under CH.H 1704.90 of the said schedule and that the product was sold under the brand name "Mapro Mahableshwar" at the moment, which is being used by M/s. Mapro Foods and they were not aware of the changes made in the Notification No. 1/93 dt. 1/3/93 by Notification No. 59/94 dt. 01.03.94. That the exemption was not available to products bearing the brand name of other than manufacturer himself. Enquiries made and statements recorded reveal that M/s. Mapro Foods, Mahableshwar's, logo is a brand name of M/s. Mapro Foods being used by M/s. Mapro Foods for Jams, Crushes and Syrups of Mapro Foods. "Fruity Sweets" are not being manufactures at all by M/s. Mapro Foods. In pursuance of the show cause notice dt. 19.09.95 the appellants immediately debited a sum of Rs. 3 Lakhs vide Entry No. 3 dt. 22nd Sept.'95 of PLA and informed the Asstt. Commissioner, Central Excise , Pune accordingly.

2. After considering the reply to the notice, the Commissioner found that it is an admitted fact that the brand name belonged to another unit which was being used on "Fruity Sweets" which were not being manufactured by M/s. Mapro Foods the brand name owner. Relying on the Madras High Court decision in the case of Bells Products Vs. UOI 1995 (78) ELT 404 (Mad) he concluded that appellant will not be admissible to SSI benefit, if brand name of another person not eligible for exemption is being used notwithstanding the fact the goods are of different kind which are being manufactured by Brand name owner and the alleged SSI. He also found that in the present case, even if it was assumed that the brand name was used from October'94 only, it will be of any consequence as "Mapro" being the common words for the two units an impression was created in the minds of the public that the unit manufacturing "Fruity Sweets" belonged to a group of persons associated with `Mapro foods' only. He also found that as regard suppression the appellants never disclosed the fact of using brand name of another person for their product and this should be held to prove the intent to evade duty. The extended period was therefore, rightly invoked. He found the reasons to arrive at end order the confiscation of Plant and Machinery, to be that the amount of duty was more than One Lakhs. Therefore the demand of Rs. 3,93,747/- was confirmed and a penalty of Rs. 10,000/- was imposed under Rule 173Q on the appellant. The confiscation of Land and Building, Plant and Machinery was ordered under Rule 173Q (2). However he allowed the same to be redeemed on payment of fine of Rs. 5,000/-.

3. We have heard both the sides and considered the matter and find as follows:

a. We find that the issue