2003 (4) TMI 145 - AT - Central Excise

Summary

Issues involved:
Availment of benefit of exemption as a small-scale industry using the trade mark of another person.

Analysis:
The appeals arose from an Order-in-Appeal regarding the availment of exemption as a small-scale industry using another person's trademark. The Appellant, a partnership firm manufacturing PVC and sports shoes, claimed small-scale unit benefits under Notification No. 1/93-Central Excise. The Additional Commissioner disallowed the exemption, citing the use of the brand name 'Sundar' belonging to another entity. The Appellants argued that 'Sundar' was not a registered brand name of the other entity under the Trade Marks Act, emphasizing their continuous use of 'Sundar' since 1990. They contended that the brand names on their products were 'Climbers', 'Kishore', etc., not 'Sundar'. The Appellants also claimed the demand was time-barred, having provided necessary intimation to the authorities. The Departmental Representative argued that 'Sundar' was registered under the other entity's name and that the Appellants' use of the brand name was to evade duty payment, citing a Tribunal decision on SSI exemption availability post-registration of a trademark.

The Tribunal considered both sides' submissions, noting that small-scale units are ineligible for exemption if using another person's brand name. The Revenue alleged the Appellants' goods bore the registered brand name 'Sundar' of another entity, but the Appellants argued 'Sundar' was registered under the Copyright Act, not as a brand name under the Trade Marks Act. The Tribunal found no conclusive evidence that 'Sundar' was registered as a brand name in favor of the other entity. The Appellants demonstrated their use of brand names like 'Sundar Climbers' on their products, supported by customer order letters. The Tribunal referenced precedents where SSI exemption was upheld when goods were sold under the Appellants' own brand names, not another person's. As the Revenue failed to prove the Appellants' goods bore another person's brand name, the Tribunal set aside the impugned order and allowed both appeals.