Per Justice U.L. Bhat :

The order in original dated 4.3.96 passed by the Commissioner of Central Excise, New Delhi is under challenge in this appeal.

2. Appellant engaged in the manufacture of various kinds of machinery and systems such as ejector, vacuum system, evaporation plant, scrubbing system etc. was availing invoice price procedure and paying duty on the basis of the invoice price shown in the various invoices. The dispute relates to the period from 1988 to July 1992 covering supplies made as per orders placed by several parties including M/s. Lipton India ltd., M/s. Hindustan Lever Ltd. etc. Appellant had availed of the benefit of partial exemption Notification 175/86. Show cause notice was issued demanding differential duty of Rs. 32,38,204- on the ground that the benefit of notification was not available inasmuch as appellant was using the brand name of the technical collaborator which fact had been suppressed from the knowledge of the department. Accordingly, the larger period of limitation under the proviso to Section 11-A(1) of the Central Excises Act, 1944 was sought to availed. Appellant resisted the notice alleging that collaboration Agreements related only to drawings and designs and nothing more and which royalty and engineering fees had been paid and the Agreement did not provide for use by appellant of the brand name of the collaborator and in the fact brand name had not been used and therefore, the appellant did not fall within the exemption contemplated in the notification.

3. This order was set aside by the Tribunal and the case was remanded to enable the adjudicating authority to decide the question relating to the brand name aspect and also to decide a new point raised before the Tribunal to the effect that the various items were manufactured by the appellant and cleared from the factory and removed to the sites of the buyers and in the course of assembly and installation they became part of immovable property and hence not excisable goods. After remand, the Commissioner held against the appellant on both these aspects and confirmed the demand.

4. According to para 7 of the exemption Notification 175/86 the notification shall not apply to the specified goods where a manufacturer affixes the specified goods with a brand name or trade name (registered or not) of another person who is not eligible for grant of exemption under the notification. Explanation VIII to paragraph 7 of the Notification reads thus:-

"`Brand name' or `trade name' shall mean a brand name or trade name, whether registered or not, that is to say a name or a mark, such as symbol, monogram, label, signature of invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person".

5. In the instant case, the Collaboration Agreement required the appellant to affix on every system manufactured on the basis of designs and drawings provided by the foreign collaborator, name plate declaring that the same are manufactured in technical collaboration with the foreign collaborator. Accordingly, on the various components of the systems in respect of which the demand has been made, appellant had affixed name plates declaring that the same were manufactured in technical collaboration with "GEA Wiegand GMBH Ltd. West Germany". The name of the appellant is M/s. Wiegand India Pvt. Ltd. On the basis of the contents of the name plate, the Commissioner held that this was a case where brand name of another manufacturer who was not eligible for the benefit of exemption notification was used by the assessee and therefore, the benefit of the notification would not be available. The Commissioner placed reliance on the decisions of the Tribunal in Festo Controls (P) Ltd. Vs. Collector of Central Excise, Bangalore [1994 (72) ELT 919 (T)]= 19