9911796707
TMI Blog1993 (6) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1985 and were recognised as ISI vide certificate dated 17-10-1984. They were holding Central Excise Licence L 4/50/1-84-85 dated 21-4-1984. They had filed classification list No. 1/87-88 effective from 1-4-1987, 1/88-89 effective from 1-4-1988, 2/88-89 effective from 16-6-1988 and 1/89-90 effective from 1-4-1989 as per the provisions of Rule 173B of Central Excise Rules, 1944 for their product Starweld Welding Electrodes of various types, sizes and specifications mentioned therein under sub-heading 8311.00 of the Schedule to the Central Excise Tariff Act, 1985 and claimed concessional rate of excise duty under Central Excise Notification No. 175/86 dated 1-3-1986. The Supdt. of Central Excise (Prev.), Mehsana visited their factory alongwith his staff on 26-12-1989, and on examination of products manufactured and mode of its packing in packets/packages, found that the welding electrodes (Arch welding) manufactured by them, had been first packed in paper/paper board carton called packets. These packets alongwith other informations printed with Trade name STARWELD in some special manner and style with the wordings Welding Electrodes . The said carton also had a printed trad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by payment of royalty @ 2.5% for three years only. He also admitted that one of the raw-materials flux manufactured by Advani Oerlikon, Bombay, specially formulated for the unit, was being sold only to the assessee unit. The said formulations were samples of finished welding electrodes manufactured by them before despatch for sale in market were sent to A.O.L. Bombay for testing its quality and performance. The goods were cleared to market only after the results of the test were approved by A.O.L., Bombay. 3. The statement of Shri N.P. Shahani, General Manager of the assessee unit was also recorded on 2-1-1990, who admitted the use of the said logo on all the products manufactured by AOL, Bombay in all their units in India. The flux known as STARWELD FLUX manufactured by A.O.L., Bombay specially formulated for their unit, had to be purchased only from A.O.L. Bombay and not from elsewhere for the manufacture of welding electrodes. He had further stated that the Trade Mark logo in question had been registered in the name of A.O.L., Bombay and that they were not utilising the benefit of Notification No. 175/86 as amended. He had also stated that the said logo had also been ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... echnical collaboration with M/s. Advani and this fact had been declared to the Excise Department. The covering letter accompanying the classification list also clearly mentioned about this fact. The letter heads on which they were corresponding with department also disclosed about this fact. 5. During the personal hearing Shri K.M. Gohel, Rtd. Supdt. of Central Excise, Shri S.B. Patel, Inspector and Shri S. Gautam, Supdt. of Central Excise was present and none on behalf of the appellants. 6. Shri Gohel admitted that during service, he had frequently visited the factory of the appellant. He had studied the process of manufacture during his visit to the factory. During the course of his study of the process of manufacture and also examination of final product i.e., welding electrodes, he did not find any mark affixed or engraved on it. He admitted about the inspectors working under him also visiting the factory and he had also directed his Inspectors to undertake the visit to the factory for the purpose of PBC checks, Modvat checks, pre-budget verification etc. None of his inspectors had even brought to his notice any contravention of any of Central Excise Rules. He had also exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave never intimated to the Department about the fact that they were manufacturing the welding electrodes under technical collaboration with M/s. AOL Bombay. They had also concealed from the Department the facts that there was an elaborate technical collaboration agreement by which the manufacturer, processing, sale of the product alongwith its raw-material were totally controlled by M/s. AOL Bombay. In their classification lists furnished at different times they have referred their welding electrodes product as only Star-weld" without elaborating this fact of utilisation of the Trade Mark/Brand of M/s. AOL, Bombay. They have not intimated separately by a covering letter alongwith the classification list the details of this product Star-weld. Even in their classification, the details of the manufacturing process also does not throw any indication about the elaborate arrangements under an agreement with M/s. AOL for the manufacture of this product. Therefore, there were definite suppression of certain vital facts from the Department whereby an impression was created to all around in the Department that the product which the party was manufacturing was carrying their own brand name. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mutually agreed upon between the parties hereto after the expiry of the said agreement. 12. The appellant had not noticed this insertion after the copy of agreement was received by them. Therefore, by their letter dated 27-1-1988 they raised a dispute with M/s. AOL. M/s. AOL by their letter dated 11-2-1988 admitted about the insertion of the above-stated line and they treated the line to be cancelled and they made it clear that at no point of time, they would ask any consideration for the transfer/assigning of the brand name. Thereafter, M/s. AOL by their letter dated 17-2-1988 to the Registrar of Trade Mark, Bombay informed them that they were withdrawing the application for registration of Trade Mark `STARWELD in their name as they learnt that it belonged to M/s. Superstar Welding Ltd. The Deputy Registrar of Trade Mark by his letter dated 3-5-1990 informed M/s. AOL that the application of registration of trade mark Super Weld, in their name has been treated as withdrawn. On these facts, Shri Dave, ld. Advocate contended that the Trademark Superweld is solely owned by the appellants and that the goods were traded in their own name and hence there was no infringement of Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the wrappers and packings and on cartons. There is no serious argument made before us about the non-applicability of the Notification No. 175/86 but the contentions raised is that the department was fully aware of the use of the logo of M/s. AOL by the appellant and that there was no conscious or deliberate suppression or withholding of information and hence larger period cannot be invoked in this case. Examining the facts on merits, the ld. Collector had held that benefit of the Notification No. 175/86 cannot be extended to the appellants as their welding electrodes namely Starweld was being sold in a unit packing which displayed the brand name Starweld Logo SS, Logo of M/s. AOL and the name of the company M/s. AOL on the unit pack. The product was manufactured under the quality control of M/s. AOL and by taking technical know-how, skill and services required for the manufacture and processing of the welding electrodes and also by obtaining process control, research and development facility for the sale of the product. They were being supplied with principal raw material flux exclusively from M/s. AOL. It has also come on record that the product Rutile which is one of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are of the view that even if the brand name Star-weld is owned by the appellant, yet the fact remains that the logo of M/s. AOL and colour scheme of the packing of M/s. AOL s product is being adopted by the appellant, hence Para 7 of the said notification clearly disentitles them from the benefit of the notification. Therefore, we see no reason to interfere with the findings of the ld. Collector and we confirm the same and hold that the appellants are not entitled to the benefit of the notification in question. In this regard the ruling of Thio Pharma v. Collector of Central Excise 1992 (60) E.L.T. 395 is also directly applicable to the facts of this case. 16. The other point that remains for determination in regarding the invocation of larger period on the ground of suppression and withholding of information. The ld. Collector has held that the appellant had concealed from the department about the elaborate technical collaboration agreement with M/s. AOL. He has further held that in their classification lists furnished at different times they had referred their welding electrodes as only Starweld without elaborating this fact of utilisation of the trade mark/brand of M/s. A ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
