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TMI Blog1994 (11) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... 91 for the period May, 1988 to October, 1990, under Rule 9(2) of Central Excise Rules, 1944 read with Section 11A of Central Excises and Salt Act, 1944. A penalty of Rs. 80,000/- has also been imposed under Rule 173Q(1) of Central Excise Rules, 1944. 2. The allegations made in the show cause notice is that the assessee during the said period had suppressed the fact of affixing the brand name of another manufacturer, who is not eligible for the exemption under the SSI exemption Notification No. 175/86, dated 1-3-1986, thus evading the said duty amount. It is also stated that they had wrongly claimed the exemption under the said notification, by affixing the brand name of another manufacturer, who is not eligible for concession under the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir contention and has upheld the charges made in the show cause notice. The ld. Collector has noticed from the statement of Shri J.R. Shah, that the brand name H R, with a logo of a humming bird is being used by German Company, `Hermann Reimer , started earlier to their company. They were also using the same brand name with the same logo. The ld. Collector referring to the statement of Shri Shah, has held that the assessee had the right to use these identification marks and logo. The Collector has noted that the name and style of writing the abbreviations H R , the colours used, the logo of the humming bird with a flower in the beak, are identical with the Germany Company s logo and brand name. Therefore, he has held that using the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facturing the foreign Co. s products and that they did not have any collaboration agreement, nor they were paying any royalty and that there was no sharing of technical know-how. However, the appellants were only their agent for importing their goods and the agreement was executed only in this context. He submitted that other than this aspect, there was nothing on record to show that the appellants were manufacturing the foreign Company s goods. He fairly admitted that the colour, design and the logo mark of the foreign company with that of the appellant was identical. He submitted that what distinguishes their case with the decided cases on this point is that the same product was not being manufactured and the exemption could be denied onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the foreign company s brand name, logo and colour design. It came to light only on investigation by the raiding staff and hence larger period is invokable. In this context, he relied on the ruling rendered in the case of British India Corpn. Ltd. v. Collector of Central Excise, Chandigarh as reported in 1986 (25) E.L.T. 727. He submitted that the ruling rendered by the Hon ble Supreme Court in the case of Jaishri Engineering Co. (P) Ltd. v. Collector of Central Excise, as reported in 1989 (40) E.L.T. 214 (SC), is also applicable to the facts of the present case. 9. We have carefully considered the submissions made by both the sides and have perused the agency agreement, as well as the impugned order. The ld. Collector has made a deta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commission agents or on their own account will not sell products included in the production line of H R , but not originating from H R . In case H R take up into their production line such products as will considerably differ from the types of products made hitherto, and if agents have already marketed such types of products in the name of other firms, then both parties will consult each other to amicably settle the resulting difference of interests. H R shall be notified of any further agency activity for a third party which agents intend taking up." As per Article X, the agreement has been entered into for an unlimited period of time. 10. As can be seen from these clauses, there is mutuality of interest in each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are not different. Therefore, the rulings of Precise Electronics and that of Opus India [are] clearly not applicable. The aspect of the use of foreign brand name has been gone into at great length in the case of Festo Controls (P) Ltd. v. Collector of Central Excise, Bangalore as reported in 1994 (72) E.L.T. 919 (Tri.) = 1994 (2) R.L.T. 621 and that of Indian Reprographic Systems Pvt. Ltd. (supra). In the case of Thio Pharma v. Collector of Central Excise, 1992 (60) E.L.T. 395, the Tribunal has clearly held that even if the assessee is merely an agent of the manufacturer, who is not entitled for the benefit of the notification and if the brand name, logo, sign, mark and colour scheme of that manufacturer, has been used, then the benefit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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