1998 (2) TMI 581 - AT - Central Excise

Summary

Issues Involved:
1. Whether the appellants are entitled to the benefit of Notification No. 1/93.
2. Whether the repacking of Scented Supari into pouches/containers amounts to manufacture.
3. Whether the appellants are using the brand name of another person as per Explanation 9 of Notification No. 1/93.

Summary:

Issue 1: Entitlement to the Benefit of Notification No. 1/93

The Commissioner (Appeals) dismissed the appeals and held that the appellants are not entitled to the benefit of Notification No. 1/93, confirming the orders of the Assistant Commissioner. The lower authorities held that the appellants are ineligible for the exemption under Notification 1/93 due to para 4 and Explanation 9, which states that if any trader uses the brand name of another trader in relation to the specified goods, the benefit is not available.

Issue 2: Repacking as Manufacture

The appellants procured Scented Supari in bulk and repacked it into pouches/containers, marketing it under the brand name "ARR" with logos and a photograph of Shri A.R. Ramasami. The lower authorities held that repacking in unit containers amounts to manufacture, thus denying the benefit of Notification 1/93.

Issue 3: Use of Brand Name

The learned Consultant argued that for Explanation 9 to apply, it must be established that the appellants are using the brand name of another person on such goods sold by the other person. The Consultant contended that the goods sold by M/s. ARR Seeval (raw betelnut in chipped form) and the goods sold by the appellant (Scented Supari) are not the same. The brand name of M/s. ARR Seeval is different from the brand name used by the appellant, and the mere use of some logos and photographs does not amount to using the same brand name.

The Tribunal considered the submissions and referred to the principles laid down by the Madras High Court in Union of India v. Pillaiyar Soda Factory, which emphasized that the word "same" in the notification must be understood according to its plain and ordinary meaning. The Tribunal concluded that the appellants are not using the same trade mark as M/s. ARR Seeval, and at best, it can be said that it is deceptively similar.

The Tribunal also relied on the CBEC Circulars, which clarified that it is permissible to have the same trade mark for different classes of goods owned by different persons. The goods sold by M/s. ARR Seeval (raw betelnut) and the goods sold by the appellant (Scented Supari) are different and known in the market differently.

Conclusion:

The Tribunal held that the decision of the lower authorities is not sustainable and allowed the appeals with consequential relief, stating that the appellants are not using the same brand name as M/s. ARR Seeval and the goods marketed by both are different.