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TMI Blog1991 (10) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 12-11-1990 wherein they inter alia claimed the benefit of exemption under Notification No. 175/86-C.E., dated 1-3-1986 in respect of their products. The appellants received a show cause notice dated 21-11-1990 from the Assistant Collector proposing to deny the exemption under Notification No. 175/86. However, in his order dated 21-11-1990 the Assistant Collector observed that the appellants had acquired the exclusive right to use the brand name "CINNI" and the owner of the brand name had undertaken not to permit any other manufacturer of machine tools and electric motors to use the said brand name. Relying upon the Tribunal's decision in the case of Precise Electronics v. CCE - 1993 (65) E.L.T. 69 (Tri.) = 1990 (30) ECR 476 the Assistant Collector held that the appellants were eligible for exemption under Notification No. 175/86. The order passed by the Assistant Collector was reviewed by the Collector of Central Excise, Allahabad under Section 35E of the Central Excises & Salt Act, 1944 and he directed the proper officer to file an appeal against the order passed by the Assistant Collector Varanasi on the grounds that the owner of the brand name namely M/s. Raj Kumar Sah & Son ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned order denying the exemption to the appellants who is neither a manufacturer nor a trader on the ground that brand name owner was not a manufacturer is not legal. He stated that in para 14 of the Tribunal's decision in the case of Thio Pharma v. Collector of Central Excise reported in 1992 (60) E.L.T. 395 it has been held S.S.I. exemption under Notification 175/86 does not apply to goods affixed with a brand name or trade name of another person who is not eligible for the grant of S.S.I. exemption, irrespective of the fact whether such person is a manufacturer or a trader. He contended that in view of this finding of the Tribunal M/s. Raj Kumar Sah who owned the brand name and who were neither a manufacturer nor a trader in the specified goods would be eligible to the exemption of duty on goods valued upto Rs. 7.5 lakhs under Notification No. 175/86. He argued that under these circumstances the use of the brand name "CINNI" by the appellants on their goods would not disentitle them of the exemption under Notification No. 175/86 in terms of para 7 read with Explanation VIII since the brand name owner M/s. Raj Kumar Sah being neither a manufacturer nor a trader were eligible f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thio Pharma v. Collector of Central Excise which was cited by the Counsel for the appellants it follows that "another person" referred to in para 7 of the notification need not necessarily be a manufacturer and would include even non-manufacturers. He reiterated his stand that in terms of Tribunal's decision in the case of Precise Electronics v. Collector of Central Excise the appellants were not entitled to exemption in terms of para 7 of the Notification 175/86 since they were using the brand name of which the right of ownership vested in M/s. Raj Kumar Sah and Sons. He argued that for this purpose whether the brand name owner was himself manufacturing any specified goods was not relevant. 4. In his rejoinder, Shri A.K. Jain, the Ld. Advocate contended that under the Trade and Merchandise Marks Act, 1986 a "trade mark' can be assigned or permanently transferred by the owner to any other person or the right to its use can be licensed for a specified period. He submitted that interpretation of the term 'another person' in para 7 so as to include even persons who are neither manufacturing anything nor engaging themselves in any trading activity would not be permissible in view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tric motors. 7. Evidently, the use of the brand name "CINNI" by the appellants in their capacity as its exclusive users for a specified period in terms of a contract with the owner was with the purpose of indicating a connection in the course of trade between their products and themselves as users of the brand name. It does not stand to reason that the appellants had acquired the exclusive right to use of the particular brand name on their products with the intention of showing a connection between their product and the owner of the brand name. Under these circumstances we do not find any force in the appellants' contention that the word "CINNI" could not be deemed as a "Brand name" or a "trade name" in terms of Explanation VIII of the Notification No. 175/86. For the same reasons we reject the appellants' contention that they were not hit by para 7 since the use of the word "some" before the expression "person" and also the use of the expression "such" at two places before the expression 'specified goods' suggests that there should be another person using the same brand name on the same specified goods. 8. The appellants have also challenged the finding of the Collector (Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X
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