2017 (5) TMI 617 - AT - Central Excise

SSI exemption - use of Brand Name of another person - it was found that the respondents were clearing the finished products under the brand name RADO which was already being used by other persons - the case of Revenue is that the brand name RADOJI is deceptively similar to the brand name RADO which is registered in the name of other persons - Held that - Since no allegation has been raised in the SCN that the respondents have been using deceptively similar brand name, the said plea of the department cannot be accepted at the stage of appeal - From the documents of the Trademark Registry also, it is seen that the respondents had applied for the registration of the brand name RADOJI and not RADO - the respondents have been clearing the goods under the brand name RADOJI and not RADO as alleged in the SCN - appeal dismissed - decided against appellant-Revenue.

Summary

Issues:
- Allegation of wrongful availment of SSI exemption based on the use of a brand name belonging to another person.
- Dispute regarding the brand name used by the respondent - "RADO" or "RADOJI".
- Interpretation of evidence including deposition of Proprietrix and Trademark Registry records.
- Lack of specific allegation in the show cause notice regarding the brand name being deceptively similar.

Analysis:
The appeal in question was filed against the order of the adjudicating Commissioner who had dropped the demand raised in the show cause notice alleging the wrongful availment of SSI exemption due to the use of a brand name belonging to another person. The respondents were engaged in manufacturing automobile parts and were found clearing products under the brand name "RADO," leading to the demand for duty and cess. The appellant-department argued that the respondents were using a brand name already registered by other manufacturers, thus not eligible for SSI exemption. They claimed that the brand name used by the respondent, "RADOJI," was deceptively similar to "RADO," citing evidence from the Trademark Registry and the deposition of the Proprietrix. However, the counsel for the respondent contended that they had been using the brand name "RADOJI" since 1992, had applied for its registration, and had not applied for "RADO." The Commissioner dropped the proceedings based on a detailed analysis of the facts, including the statement of the Proprietrix and the brand name used in invoices.

The main contention revolved around whether the brand name "RADOJI" used by the respondent was deceptively similar to the registered brand name "RADO." The Tribunal noted that this allegation was not raised in the show cause notice, which only mentioned the use of the brand name "RADO." The evidence presented, including the deposition of the Proprietrix and the Trademark Registry records, indicated that the respondent had applied for the registration of "RADOJI" and not "RADO." The Tribunal emphasized that the lack of specific allegations in the show cause notice prevented the acceptance of the new plea regarding the similarity of brand names at the appellate stage. Ultimately, based on a thorough evaluation of the evidence and legal principles, the Tribunal concluded that the impugned order required no interference, leading to the dismissal of the appeal.