9911796707
TMI Blog1997 (6) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... invoice price procedure and paying duty on the basis of the invoice price shown in the various invoices. The dispute relates to the period from 1988 to July 1992 covering supplies made as per orders placed by several parties including M/s. Lipton India Ltd., M/s. Hindustan Lever Ltd. etc. Appellant had availed of the benefit of partial exemption Notification 175/86. Show cause notice was issued demanding differential duty of Rs. 32,38,204/- on the ground that the benefit of notification was not available inasmuch as appellant was using the brand name of the technical collaborator which fact had been suppressed from the knowledge of the department. Accordingly, the larger period of limitation under the proviso to Section 11A(1) of the Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r not, that is to say a name or a mark, such as symbol, monogram, label, signature of invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person . 5. In the instant case, the Collaboration Agreement required the appellant to affix on every system manufactured on the basis of designs and drawings provided by the foreign collaborator, name plate declaring that the same are manufactured in technical collaboration with the foreign collaborator. Accordingly, on the various components of the systems in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the benefit of the Notification. In Festo Controls Pvt. Ltd. the goods were manufactured as per the design and specification of the collaborator Festo K.G. Germany . The collaborator had substantial interest in the assessee s company. The word Festo had assumed a recognisable trade and brand name in the market. It was held that though the brand name of the collaborator was Festo Pneumatic the use of the word Festo on the assessee s products must be regarded as use of the brand name of another company. 6. The question for consideration is to what extent the decision in Festo Controls (P) Ltd. is effected by the latter decision of the Supreme Court in Astra Pharmaceuticals (P) Ltd. v. Collector of Central Excise [1995 (75) E.L.T. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th or without any indication of the identity of that person. We find that the definition of brand name in Notification No.175/86 and the definition in Explanation I to erstwhile Tariff Item 14E are almost identical. The cover used for the medicine in the instant case carried the name AP. Astra . According to the department use of the words AP. Astra amounted to use of brand name. The Supreme Court held that the medicine in question was not registered under the Trade Merchandise Marks Act and would attract levy only if the container or the packing carried any distinctive marks so as to establish relation between the medicine and the manufacturer and the identification of medicine should not be equated with the produce mark. The Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mounting to using the brand name of another person. In these circumstances, the Commissioner was, in error in taking the view that the brand name of another person had been used by the appellant. We hold that the appellant was entitled to the benefit of the notification. 8. The above finding would be sufficient to dispose of the appeal. Arguments have been advanced before us on the second aspect, namely whether anything had been installed or erected at the sites of the buyers and whether in the course of installation on erection the articles installed and erected became part of immovable property. The Commissioner has gone by the description found in the various contracts and ignoring the circumstance that erection and assembly were also ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
